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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1783 OF 2005

UNION OF INDIA & ORS. .......APPELLANTS  

Versus

A. DURAIRAJ (DEAD) BY LRS. .....RESPONDENTS

O R D E R

R.V. RAVEENDRAN, J.

Application  for  substitution  allowed.   The  

appellants are permitted to bring the legal heirs of the  

deceased respondent on record.  Cause title to be amended.  

Heard.

2. The  respondent,  a  diploma  holder  in  

mechanical engineering belonging to a schedule caste, while  

working  as  a  Senior  Section  Engineer,  Signal  and  

Telecommunications,  Southern  Railways,  in  the  year  1976,  

was considered alongwith others, for adhoc promotion to the  

post of Asst. Signal and Telecommunication Engineer ('ASTE'  

for  short).   Those  who  passed  the  medical  examination  

(which  included  the  tests  to  find  out  whether  the  

candidates were not suffering from colour blindness) were

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given  ad hoc promotions. However the medical examination  

report of respondent showed that he was colour blind and,  

therefore, he was not given ad hoc promotion as ASTE.   

3. In the year 1980, the respondent appeared for  

the written examination for regular promotion to Class II  

Group 'B' Services (including ASTE), but failed to qualify  

and was not promoted.  According to the respondent, three  

other schedule caste candidates who were earlier given  ad  

hoc promotion  as  ASTE,  and  who  also  had  failed  in  the  

written examination, were promoted in view of the policy of  

the government to select the best among the failed schedule  

caste candidates. According to respondent, if he had been  

given the ad hoc promotion in the year 1976, he would have  

had  a  better  chance  of  been  considered  for  regular  

promotion  as  ASTE  inspite  of  failing  in  the  written  

examination.

4. In 1981, the post of ASTE was declared to be  

a 'safety category' post, which meant that the candidates  

should  be  free  from  colour  blindness  apart  from  being  

medically  fit.   Though  there  were  several  subsequent  

examinations  for  promotion  to  the  post  of  ASTE,  the  

respondent did not participate. After 1976, the respondent,  

however,  made  several  attempts  to  find  a  cure  for  the

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colour blindness and continued to consult various doctors  

in India and abroad.

5. When the respondent acquired a B.E. degree in  

the  year  1998,  he  was  sent  for  medical  examination  for  

being empanelled as an eligible candidate for Group 'B'  

promotion. The report of Medical Board was favourable.  He  

was therefore promoted as Asst. Works Manager on  ad hoc  

basis  on  24.9.1998.    Thereafter  the  respondent  gave  

representations  dated  28.12.1998  and  3.9.1999  contending  

that he was unjustly refused  ad hoc promotion in 1976 on  

the ground of colour blindness and he should be given such  

promotion as ASTE with retrospective effect from 1976, as  

also all consequential promotions. As that request was not  

acceded,  the  respondent  filed  an  application  before  the  

Central  Administrative  Tribunal,  Chennai  ('Tribunal'  for  

short) in OA No.1267/1999 praying for a direction to the  

appellants to promote him to the post of Deputy Chief, S&T  

workshop Padanur, by granting him the several promotions to  

which he would have been entitled form 1976, if he was not  

colour blind.  In the said application, he alleged that the  

medical examination carried out in the year 1976 was done  

carelessly  and  negligently,  thereby  denying  him  the  

opportunity of being promoted as ASTE on ad hoc basis; and  

that,  therefore  the  appellants  ought  to  redress  his

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grievance by giving all promotions to which he was entitled  

and deserved on the basis of his seniority. According to  

him if he had been promoted as ASTE in the year 1976, by  

the  year  1999,  he  would  have  secured  several  further  

promotions and reached the position of Deputy Chief, S&T  

Workshop.   The  said  application  was  disposed  of  by  the  

Tribunal  by  order  dated  22.12.1999  with  a  direction  to  

consider his pending representations seeking promotion.

6. In compliance with the said direction, the  

General  Manager,  Southern  Railway  considered  his  

representation and sent the following communication dated  

8.2.2000 to the respondent:

“The old records have been traced out. They clearly  reveal  that  you  were  having  colour  blindness,  you  also  had  accepted  the  same  and  had  sought  for  permission  to  use  “x-chrom”  contact  lens  used  for  colour  blindness  available  only  in  USA  vide  your  letter dated 8.11.1976.

Probably with correction of such defect in vision you  could  have  been  declared  fit  in  the  medical  examination held in the year 1998.

Ordinarily wearing of colour vision soft contact lens  cannot  be  detected  by  naked  eye  examination.  On  further examination it is possible to confirm this.  Accordingly,  it  is  proposed  to  direct  you  for  a  special  medical  examination  by  a  committee  to  be  appointed by CMD shortly.”

7. Respondent again approached the Tribunal by  

filing OA No.460/2000 for quashing the order dated 8.2.2000  

and seeking a direction to the appellants to promote him to

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the post of Deputy Chief, S&T Workshop with retrospective  

effect from 1991 when his promotion to the said post became  

due.  In this application, he reiterated the averments and  

contentions  made  in  the  earlier  application  (OA  

No.1267/1999).

8. In the meanwhile, the respondent was sent for  

medical  examination  to  the  Medical  Director,  Souther  

Railway Hospital, Perambur, as decided in the order dated  

8.2.2000,  who  in  turn  referred  him  for  a  comprehensive  

testing  for  colour  blindness.   A  team  of  Experts  in  

Shankara  Netralaya,  a  renowned  eye  centre  in  Chennai  

examined him, using the latest equipments and found his  

colour blindness to be minimal, which would not interfere  

or affect his work.

9. The  Tribunal  dismissed  the  respondent's  

application  (OA  No.460/2000)  by  order  dated  18.10.2000.  

The Tribunal held that if the respondent was aggrieved by  

his non-promotion as ASTE on ad hoc basis in the year 1976,  

he should not have kept quiet for more than 23 years and it  

was not open for the respondent to seek reopening of the  

issue in the year 1999-2000.   The Tribunal also held that  

the medical examination in 1976 was only with reference to  

a proposed ad hoc promotion for a temporary period, and as

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the respondent had failed in the written examination for  

regular promotion in the year 1980 and thereafter failed to  

appear in any of the promotional examinations, he could not  

make a grievance in regard to non-promotion to the post of  

ASTE.

10. The  respondent  challenged  the  decision  of  the  

Tribunal in WP No.407/2001. During the pendency of the writ  

petition the respondent was given a promotion as ASTC on  

22.11.2002 and he retired from service on 30.4.2003.  A  

division bench of the Madras High Court ultimately disposed  

of  the  said  writ  petition  by  the  impugned  order  dated  

10.3.2004 recording the following findings:

a) Colour blindness is incurable. The finding in  

1998 and 2000 that the respondent was not colour blind, led  

to an inference that the earlier diagnosis in 1976 that he  

was colour blind, was erroneous.

b) But, even if he had been found to be not  

colour  blind  and  medically  fit  in  the  year  1976,  the  

respondent would have held the position of ASTE only on ad  

hoc  basis, till regular promotions were made. Unless he  

succeeded in the regular written examination and fulfilled  

the minimum standards for promotion, he would not have been  

promoted as  ASTE on regular basis.  The respondent failed  

in  the  examination  held  in  the  year  1980-81  even  after  

relaxing the standards and therefore he would not have been  

promoted  as  ASTE  even  if  he  was  not  colour  blind  and

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therefore the contention of the respondent that he had lost  

further promotions could not be accepted.

c)  The post of ASTE was categorised as a safety  

post in the year 1981; that as the safety of the persons  

who used the railways was of paramount importance, and the  

medical opinion was that the respondent was colour blind,  

it could not be said that the action of the appellants in  

not promoting him on  ad hoc basis in the year 1976, was  

illegal.   There  was  no  mala  fides on  the  part  of  the  

railways in not promoting him on ad hoc basis in 1976, and  

the appellants had not intentionally withheld any benefit  

legally due to the respondent.

d) Having regard to the nature and standard of  

eye testing equipments that were available in 1976, the  

opinion  of  the  doctors  that  the  respondent  was  colour  

blind, was rendered bonafide and could not be said to be on  

account of lack of competence or negligence and would not  

furnish any cause of action to the respondent for seeking  

any relief. The fact that more than two decades later, by  

using technologically advanced testing equipments, a team  

of  Doctors  in  an  internationally  renowned  hospital  had  

found  that  he  was  not  suffering  from  marked  colour  

blindness,  merely  showed  the  second  diagnosis  was  on  

account  of  comprehensive  examination  procedure  with  

technologically advanced equipment available at that stage,  

and did not establish that the opinion in 1976 was mala  

fide or negligent.

e) However the respondent had been denied the  

opportunity of holding the higher post of ASTE on  ad hoc  

basis from 1976-1981 on account of the medical opinion of

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1976. If he had been permitted to hold the post of ASTE on  

ad hoc basis from 1976 to 1981, he might have possibly  

succeeded in the examination held in 1980-81 and promoted  

as ASTE on regular basis.

f) As the respondent became aware of the fact  

that he was not colour blind only in the year 1998, his  

applications for relief filed in 1999 and 2000 could not be  

termed as suffering from laches.

The  High  Court  held  that  on  account  of  the  fact  that  

diagnosis in 1976 had denied him advancement in his career  

it  was  necessary  to  compensate  him  for  the  loss  of  

opportunity  and  mental  agony  and  therefore  directed  the  

appellants to pay a sum of Rs.Two lakhs as compensation to  

the respondent. The said order is challenged in this appeal  

by special leave.

11. On the contentions raised, the following questinos  

arise for our consideration:

(i) Whether the claim of the respondent ought to have  

been dismissed on the ground of delay and laches?

(ii) Whether  the  order  of  the  High  Court  calls  for  

interference on the ground that the ultimate decision is  

contrary to the findings recorded by it?

(iii) On  the  facts  and  circumstances  whether  the  High  

Court was justified in awarding a compensation of Rs.Two

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lakhs to the respondent?

Re: Question (i)

12. Section 21 of the Administrative Tribunals Act, 1985  

prescribes the limitation for approaching the Tribunal. In  

this case the medical examination of the respondent and the  

non-promotion as  ad hoc  ASTE were in the year 1976.  The  

respondent accepted the diagnosis that he was colour blind  

and  did  not  make  any  grievance  in  regard  to  his  non-

promotion.   On  the  other  hand,  he  attempted  to  get  

treatment or correction contact lenses from USA (to aid the  

colour blind to distinguish colours correctly). On account  

of  the  non-challenge,  the  issue  relating  to  his  non-

selection  in  1976  attained  finality  and  the  same  issue  

could not have been reopened in the year 1999-2000, on the  

ground that medical tests conducted in 1998 and 2000 showed  

him to be not colour blind.

13. It is well settled that anyone who feels aggrieved  

by  non-promotion  or  non-selection  should  approach  the  

Court/Tribunal as early as possible. If a person having a  

justifiable grievance allows the matter to become stale and  

approaches  the  Court/Tribunal  belatedly,  grant  of  any  

relief on the basis of such belated application would lead

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to serious administrative complications to the employer and  

difficulties to the other employees as it will upset the  

settled position regarding seniority and promotions which  

has been granted to others over the years. Further, where a  

claim is raised beyond a decade or two from the date of  

cause  of  action,  the  employer  will  be  at  a  great  

disadvantage to effectively contest or counter the claim,  

as  the  officers  who  dealt  with  the  matter  and/or  the  

relevant records relating to the matter may no longer be  

available.  Therefore, even if no period of limitation is  

prescribed, any belated challenge would be liable to be  

dismissed on the ground of delay and laches.

14. This is a typical case where an employee gives a  

representation in a matter which is stale and old, after  

two  decades  and  gets  a  direction  of  the  Tribunal  to  

consider  and  dispose  of  the  same;  and  thereafter  again  

approaches the Tribunal alleging that there is delay in  

disposal of the representation (or if there is an order  

rejecting the representation, then file an application to  

challenge the rejection, treating the date of rejection of  

the representation as the date of cause of action).  This  

Court had occasion to examine such situations in Union of  

India v. M.K. Sarkar [2010 (2) SCC 58] and held as follows:

“The order of the Tribunal allowing the first

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application of respondent without examining the  merits, and directing appellants to consider his  representation  has  given  rise  to  unnecessary  litigation and avoidable complications. x  x  x x x

When  a  belated  representation  in  regard  to  a  'stale'  or  'dead'  issue/dispute  is  considered  and decided, in compliance with a direction by  the Court/Tribunal to do so, the date of such  decision can not be considered as furnishing a  fresh cause of action for reviving the 'dead'  issue  or  time-barred  dispute.  The  issue  of  limitation  or  delay  and  laches  should  be  considered with reference to the original cause  of action and not with reference to the date on  which an order is passed in compliance with a  court's direction. Neither a court's direction  to  consider  a  representation  issued  without  examining the merits, nor a decision given in  compliance with such direction, will extend the  limitation, or erase the delay and laches.

A  Court  or  Tribunal,  before  directing  'consideration'  of  a  claim  or  representation  should  examine  whether  the  claim  or  representation  is  with  reference  to  a  'live'  issue  or  whether  it  is  with  reference  to  a  'dead' or 'stale' issue. It it is with reference  to a 'dead' or 'stale' issue or dispute, the  Court/Tribunal should put an end to the matter  and  should  not  direct  consideration  or  reconsideration.  If  the  court  or  Tribunal  deciding  to  direct  'consideration'  without  itself examining of the merits, it should make  it clear that such consideration will be without  prejudice  to  any  contention  relating  to  limitation  or  delay  and  laches.  Even  if  the  Court does not expressly say so, that would be  the legal position and effect.”

We are therefore of the view that the High Court ought to  

have  affirmed  the  order  of  the  Tribunal  dismissing  the  

application of the respondent for retrospective promotion  

from 1976, on the ground of delay and laches.

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Re: Question (ii)

15. The  fact  that  the  respondent  was  subjected  to  

medical examination in 1976 and that he was found to be  

colour  blind  is  not  disputed.   The  respondent  did  not  

challenge his non-promotion as ad hoc ASTE or the medical  

report  that  he  was  colour  blind.   He  appeared  for  the  

examination  in  1980  and  failed.  According  to  him,  in  a  

subsequent medical examination in the year 1998, he was  

found  to  be  normal  and  a  further  detailed  medical  

examination in 2000 showed his colour blindness was minimal  

which would not affect discharge of his duties as ASTE. The  

respondent therefore wants the court to infer that the 1976  

diagnosis of colour blindness was erroneous and he could  

not be made to suffer due to the negligence of the then  

Medical Board.

16. The  High  Court  has  found  that  qualified  Medical  

Board had examined him in the year 1976 and rendered a  

bonafide  opinion  based  on  the  results  of  the  medical  

examination.  The  High  Court  also  found  that  the  tests  

conducted in the year 1998 and 2000, disclosed a different  

condition.   The High Court found that the equipment used  

in  1976  was  unable  to  diagnose  the  extent  of  colour

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blindness accurately; and the more sophisticated equipments  

available in 1998-2000 for testing, made it possible to  

measure and ascertain the exact extent of colour blindness.  

This is evident from the test report dated 11.3.2000.

17. We extract the relevant portion of the test report  

of Shankara Netralaya given on 11.3.2000 (extracted by the  

respondent in his counter affidavit):

“Colour vision test

Ishihara's  test,  mainly  now  a  days  is  used  as  a  screening method. We do not do the other out dated  lantern tests. FARNS WORTH MUNSELL – 100 Hue test is  the most advanced technique available for checking  colour vision.

He  underwent  colour  vision  test  by  Ishihara's  charts,  which  showed  normal  response  in  both  the  eyes. He later underwent FARNS WORTH MUNSELL – 100  HUE TEST in both the eyes, which showed a low error  score  suggestive  of  minimally  impaired  colour  discrimination.

The error was felt to be due to the learning curve  since  FARNS  WORTH  MUNSELL  –  100  HUE  test  is  difficult  to  perform.  We  advice  the  patient  to  undergo repeat testing with FARNS WORTH MUNSELL –  100 HUE TEST in order to substantiate the diagnosis.

But the patient refused to undergo the test next day  as he felt that it was not required according to  Railway norms for colour vision testing. This he has  submitted in writing to us.”

(emphasis supplied)

Thus  the  2000  test  reiterated  the  1976  diagnosis  that  

respondent had impaired colour discrimination. But with the  

accuracy  possible  to  attain  by  advanced  equipment,  the  

initial tests showed that the degree of colour blindness

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was  marginal.   But  the  respondent  refused  to  undergo  

further tests to ascertain and confirm the actual extent of  

colour blindness.  The above report makes it clear that the  

medical report of 1976 was neither erroneous nor the result  

of any negligence. We make it clear that even if the test  

report of 2000 had demonstrated that the test report of  

1976 was erroneous, it would not be possible to attribute  

any negligence or carelessness in regard to the earlier  

medical opinion or report, as subsequent test results were  

recorded  by  using  equipment  based  on  scientific  and  

technological  advances,  which  were  not  available  at  the  

time of earlier tests.

18. In view of the clear findings by the High Court that  

the medical opinion of 1976 was bonafide and that even if  

the  respondent  had  been  found  medically  fit  in  1976,  

without  passing  the  written  examination  in  1980  or  

thereafter,  he  could  not  have  been  promoted  as  ASTE  on  

regular  basis.   The  entire  case  of  respondent  becomes  

untenable. There was no negligence or arbitrariness either  

in regard to the Medical Examination or in regard to his  

non-promotion to an ad hoc position in 1976. No injustice  

has occurred in the case of respondent.

Re: Question (iii)

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19. The  prayer  in  the  petition  was  for  retrospective  

promotion.  The High Court found that appellant was not  

entitled to such promotion.  The High Court also held that  

what was denied was only an ad hoc promotion and found that  

the respondent failed in the written examination in the  

year 1980 and therefore would not have been entitled to  

regular promotion, even if he was not colour blind. The  

failure to promote the respondent on ad hoc basis in 1976  

had no bearing on his chances of regular promotion.  At all  

events  the  rejection  of  his  candidature  for  ad  

hoc promotion was for justifiable reasons.  Therefore the  

High Court was not justified in granting compensation on a  

vague  assumption  that  respondent  had  suffered  loss  of  

opportunity and mental agony on account of what transpired  

in 1976. Sympathy cannot erase the clear principles of law  

and findings of fact, or the effect of delay and laches.

20. We,  therefore,  allow  this  appeal,  set  aside  the  

order  of  the  High  Court  and  restore  the  order  of  the  

Tribunal dismissing the original application filed by the  

respondent.  If any terminal benefits are withheld in view  

of this litigation, the same should be released without  

further delay if there is no other objection/claim.

  ......................J.              ( R.V. RAVEENDRAN

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)

  ......................J.              ( P. SATHASIVAM )

    New Delhi;     ......................J. December 01, 2010.              ( A.K. PATNAIK )