REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURSIDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 14126 OF 2009

Ghulam Rasool Lone …. Petitioner

Versus

State of J & K and another …. Respondents

O R D E R

S.B. SINHA, J.

1. One Hamiddulah Dar was an Assistant Sub-Inspector of Police.  He  

was granted promotion to the post of Sub-Inspector illegally upon relaxing  

the prescribed Rules in the year 1987.   Seven persons said to be similarly  

situated asked for similar treatment.  

2. SWP No.519 of 1987 was filed by one of them, named Abdul Rashid  

Rather, a Constable.  It was allowed by a learned Single Judge of the High  

Court by an order dated 24th September, 1998.  A  Letters Patent Appeal

2

filed thereagainst was dismissed by a Division Bench of the High Court by  

its order dated 30th July, 1999.   It is stated that a Special Leave Petition filed  

against the said order was also dismissed by this Court.  

3. Another  writ  petition was filed by four persons,  namely - Maharaj  

Krishan Bhatt,  Mohammad  Amin,  Bansilal  Bhatt  and Mohammad Abbas  

Najar  in the year  1997, which was registered as  SWP No.3735 of 1997,  

praying for their promotion to the post of Sub-Inspector with effect from the  

date on which Hamiddulah Dar, who was said to be junior to the petitioners,  

was promoted.  A learned Single Judge of the High Court allowed the said  

writ petition by an order dated 30th April, 2001.  On an intra court appeal  

having been preferred, a Division Bench of the said Court by its order dated  

11th October, 2002 allowed the same.  A Special Leave Petition was filed  

thereagainst  by  Maharaj  Krishan  Bhatt  and  Bansi  Lal  Bhatt  before  this  

Court.   Special  leave  having  granted,  the  matter  was  registered  as  Civil  

Appeal Nos. 8481-8482 of 2003.  A Division Bench of this Court allowed  

the said appeal by an order dated 1st August,  2008 which has since been  

reported in 2008 (9) SCC 24.   

4. Petitioner filed a writ petition which was registered as SWP No. 742  

of 2000.  It was allowed by a learned Single Judge of the High Court by his  

order dated 4th December, 2003.   Letters Patent Appeal filed by the State of

3

Jammu and Kashmir, however, has been allowed by reason of the impugned  

judgment and order dated 19th March, 2009.  

5. Petitioner is, thus, before us.  

6. Mr. D.K. Garg, learned counsel appearing on behalf of the petitioner  

would  contend  that  the  Division  Bench  of  the  High  Court  committed  a  

serious error in passing the impugned judgment in so far as it failed to take  

into  consideration  that  delay  or  latches  alone  could  be  a  ground  for  

discriminating  the  petitioner  vis-à-vis  five  others,  who  were  similarly  

situated.  Our attention was drawn to the fact that pursuant to the judgment  

of  the  Jammu  and  Kashmir  High  Court,  the  petitioner’s  name  was  

recommended by the Executive Branch of the State.  Even a draft order of  

promotion was placed before Hon’ble the Chief Minister.  However, the said  

relief had not been granted despite an appropriate representation having been  

filed by the petitioner.   Later the Letters  Patent Appeal  was filed by the  

State, which as noticed earlier, has been allowed by the impugned judgment.  

7. Abdul Rashid Rather, who was said to be junior to the petitioner, as  

we have noticed heretobefore, had filed writ petition in the year 1987.  It  

was decided on 24th September, 1998.   

Petitioner admittedly filed the writ petition in the year 2000 after the  

writ  petition  filed by Abdul  Rashid Rather  attained finality,  as  the order

4

passed by the Division Bench of the High Court was given effect to on 16th  

December, 1999.   

It  is  on  the  aforementioned  premise  the  effect  of  the  impugned  

judgment may have to be considered.   

8. The Division Bench by its impugned judgment framed the following  

question:-

“Was the petitioner-respondent sitting on the fence  and  sought  to  obtain  success  on  the  basis  of  success of another?

It was found that he did.   

The Division Bench opined :-

“He  having  not  expressed  grievance  as  regard  special treatment meted out to Hamiddulah Dar for  a long period of time, in law, cannot be permitted  to leap forward for the first time, on the basis of  success  of  another  who  had  been  pursuing  his  grievance  right  from  the  date  when  the  subject  unwarranted favour was shown to Hamidullah Dar.  

While  considering  the  case  of  Mahaaraj  Krishan  Bhatt  and  others  the  Hon’ble  Supreme  Court  had  no  occasion  to  go  into  the  question  whether  by  reason  of  success  of  Abdul  Rashid  Rather,  who  had  been  pursuing  his  claim  to  be  treated in the same fashion as that of Hamiddulah  Dar since 1987, anyone else, who is also similarly  situated to that of Abdul Rashid Rather, despite not  expressing  any  grievance  since  1987  about

5

dissimilar treatment, can come up to the Court and  seek similar  relief  as  has been granted to Abdul  Rashid Rather.  

That being the substantial question of law,  the judgment and order rendered by the Hon’ble  Supreme Court in the case of Maharaj Krishan and  others is of no help to the petitioner-respondent.”

9. Was  the  Division  Bench  wrong  in  its  approach  so  as  to  warrant  

interference  therewith  by  this  Court  in  exercise  of  its  extra  ordinary  

jurisdiction under Article 136 of the Constitution of India, is the question.  

10. It  is  not  disputed  before  us  that  Hamiddulah  Dar  was  illegally  

promoted.  Recruitment Rules required to be followed for promotion to the  

post of Sub-Inspector were relaxed.   

No particulars had been placed before the High Court either in the  

present case as also in the case of Maharaj Krishan with regard to the power  

of the State and/or competent authority to relax the Rules.  In absence of  

such details, we have no other option but to proceed on the basis that the  

promotion of said Hamidullah Dar was illegal.   

11. There cannot be any doubt whatsoever that keeping in view the equal  

protection clause contained in Articles 14 of the Constitution of India as also  

Article 16 thereof, all the employees should be treated equally.   Equality  

clause, however, must be enforced in legality and not illegality.  

6

12. There cannot furthermore be any doubt that Article 14 is a positive  

concept.   The Constitution does not envisage enforcement of the equality  

clause where a person has got an undue benefit by reason of an illegal act.   

In Panchi Devi v. State of Rajasthan [(2009) 2 SCC 589], this Court  

held:

“…Article 14 of the Constitution of India has a  positive  concept.  Equality,  it  is  trite,  cannot  be  claimed  in  illegality.  Even  otherwise  the  writ  petition as also the review petition have rightly not  been entertained on the ground of delay and laches  on the part of the appellant.”

13. The Court in a given case may be inclined to pass similar order as has  

been done in the earlier case on the basis of equality or otherwise.  

14. The discretionary jurisdiction under Article 226 of the Constitution  

may, however, be denied on the ground of delay and latches.  It is now well  

settled that who claims equity must enforce his claim within a reasonable  

time.   

For the said proposition, amongst others, we may notice a decision of  

a  three  Judge  Bench  of  this  Court  in  Govt.  of  W.B.  v.  Tarun  K.  Roy,  

[(2004) 1 SCC 347], wherein it has been opined :-  

“34. The  respondents  furthermore  are  not  even  entitled to any relief on the ground of gross delay

7

and laches on their part in filing the writ petition.  The first two writ petitions were filed in the year  1976 wherein the  respondents  herein approached  the High Court in 1992. In between 1976 and 1992  not only two writ petitions had been decided, but  one way or  the  other,  even the  matter  had been  considered by this  Court  in  Debdas Kumar.  The  plea  of  delay,  which  Mr  Krishnamani  states,  should be a ground for denying the relief  to the  other  persons  similarly  situated  would  operate  against  the  respondents.  Furthermore,  the  other  employees  not  being  before  this  Court  although  they  are  ventilating  their  grievances  before  appropriate  courts  of  law,  no  order  should  be  passed which would prejudice their cause. In such  a  situation,  we  are  not  prepared  to  make  any  observation only for the purpose of grant of some  relief  to  the  respondents  to  which  they  are  not  legally entitled to so as to deprive others therefrom  who may be found to be entitled thereto by a court  of law.”

(Emphasis supplied)

The question yet again came up for consideration before this Court in  

New Delhi Municipal Council v. Pan Singh, [ (2007) 9 SCC 278 ], wherein  

it has been observed :-

“16. There is another aspect of the matter which  cannot  be  lost  sight  of.  The  respondents  herein  filed a writ  petition after  17 years. They did not  agitate their grievances for a long time. They, as  noticed  herein,  did  not  claim parity  with  the  17  workmen at the earliest possible opportunity. They  did not implead themselves as parties even in the  reference made by the State before the Industrial  Tribunal. It is not their case that after 1982, those  employees  who  were  employed  or  who  were  recruited after the cut-off date have been granted  the  said  scale  of  pay.  After  such  a  long  time,  therefore,  the  writ  petitions could not  have been  entertained even if they are similarly situated. It is  trite that the discretionary jurisdiction may not be  exercised  in  favour  of  those  who  approach  the  court  after  a  long  time.  Delay  and  laches  are

8

relevant  factors  for  exercise  of  equitable  jurisdiction.

(Underlining is mine)

[See also Virender Chaudhary v. Bharat Petroleum Corpn., [ (2009) 1 SCC  

297 ].  

The  said  principle  was  reiterated  in  S.S.  Balu v.  State  of  Kerala  

[(2009) 2 SCC 479] in the following terms:-  

“17.  It  is  also  well-settled  principle  of  law that  “delay  defeats  equity”.  The  Government  Order  was issued on 15-1-2002. The appellants did not  file  any  writ  application  questioning  the  legality  and validity thereof. Only after the writ petitions  filed  by  others  were  allowed  and  the  State  of  Kerala  preferred  an  appeal  thereagainst,  they  impleaded  themselves  as  party-respondents.  It  is  now  a  trite  law  that  where  the  writ  petitioner  approaches  the  High  Court  after  a  long  delay,  reliefs prayed for may be denied to them on the  ground of delay and laches irrespective of the fact  that  they  are  similarly  situated  to  the  other  candidates who obtain the benefit of the judgment.  It is, thus, not possible for us to issue any direction  to  the  State  of  Kerala  or  the  Commission  to  appoint the appellants at this stage.”

15. Mr. Garg would, however, contend that the Division Bench of this  

Court  in  Maharaj  Krishan  Bhatt (supra)  has  categorically  held  that  the  

Division  Bench should  not  have interfered  with  the  order  of  the  learned  

Single Judge as the latter merely followed the earlier judgment.  On that  

premise,  it  is  urged  that  in  this  case  also  the  Division  Bench  had  no  

jurisdiction to entertain the Letters Patent Appeal.

9

16. It  is  one  thing  to  say  that  the  Letters  Patent  Appeal  was  not  

maintainable  but  it  is  another  thing  to  say  that  although  the  same  was  

maintainable  but  the  Division  Bench  should  not  have  exercised  its  

jurisdiction.   

17. It is beyond any cavil of doubt that the remedy under Article 226 of  

the Constitution of India is  a discretionary one.  For sufficient  or cogent  

reasons a court may in a given case refuse to exercise its jurisdiction ; delay  

and latches being one of them.  

18. While considering the question of delay and latches on the part of the  

petitioner,  the court  must  also consider the effect  thereof.   Promotion of  

Hamidullah Dar was effected in the year 1987.  Abdul Rashid Rather filed  

his  writ  petition  immediately  after  the  promotion  was  granted.   He,  

therefore, was not guilty of any delay in ventilating his grievances.  It will  

bear repetition to state that the petitioner waited till Abdul Rashid Rather  

was in fact promoted.  He did not consider it necessary either to join him or  

to  file  a  separate  writ  petition  immediately  thereafter,  although  even  

according to him, Abdul Rashid Rather was junior to him.  

The Division Bench, therefore, in our opinion rightly opined that the  

petitioner was sitting on the fence.  

10

19. If at this late juncture the petitioner is directed to be promoted to the  

post  of  Sub-Inspector  even above Abdul  Rashid  Rather,  the  seniority  of  

those  who  had  been  promoted  in  the  meantime  or  have  been  directly  

recruited would be affected.   The State would also have to pay the back  

wages  to  him which  would  be a  drainage of  public  funds.   Whereas  an  

employee cannot be denied his promotion in terms of the Rules, the same  

cannot  be granted out  of  the  way as  a  result  whereof  the rights  of  third  

parties  are  affected.   The  aspect  of  public  interest  as  also  the  general  

administration  must,  therefore,  be  kept  in  mind  while  granting  equitable  

relief.   

20. We understand that there would be a heart burning in so far as the  

petitioner is concerned, but then he is to thank himself therefor.  If those five  

persons,  who  were  seniors  to  Hamiddulah  Dar  filed  writ  petitions  

immediately, the High Court might have directed cancellation of his illegal  

promotion.  This Court in  Maharaj Krishan Bhatt (supra) did not take into  

consideration all  these aspects of the matter and the binding decision of a  

three Judge Bench of this Court in Govt. of W.B. v. Tarun K. Roy (supra).  

The Division Bench of the High Court, therefore, in our opinion was right in  

opining that  it  was not  necessary for it  to follow Maharaj  Krishan Bhatt  

(supra).  

11

21. For  the  reasons  aforementioned,  we  are  of  the  opinion  that  the  

judgment  of  the  Division  Bench cannot  be  said  either  to  be arbitrary  or  

illegal.  This Special Leave Petition is dismissed summarily.  

…………………………….J.         [ S.B. SINHA ]

…………………………….J.      [ DEEPAK VERMA ]

New Delhi July 16, 2009