1998 Supreme(SC) 1196

1998(9) Supreme 263
Supreme Court of India
(From CAT Bombay)
Mrs. Sujata V. Manohar and G.B. Pattanaik, JJ.
Union of India & Ors. -Appellants
versus
Kishorilal Bablani -Respondent
Civil Appeal No. 1328 of 1995
Decided on 3-12-1998
Counsel for the Parties :
For the Appellants: Anoop G. Choudhary, Sr. Advocate (Hemant Sharma) Advocate for V.K. Verma, Advocate.
For the Respondent : G.D. Gupta and S.R. Setia, Advocates.
For the Intervenor : Pankaj Kalra and Vijay Kumar, Advocates.

Important points
1. Where due to wrong notification of number of vacancies of the depart­ment to which I.A.S. qualified candidate was appointed, he was ap­pointed in Class II post as against Class I posts to which he was entitled, he was held to be entitled for the appointment of Class I post in the department.
2. Where due to wrong notification of number of vacancies by depart­ment concerned to which I.A.S. recruitees was appointed in a lower grade though entitled to a higher grade which fact was brought to knowledge and claim made was after 10 years, though such recruitees was entitled to appointment in higher grade, long lapse of time in making claim defeated equity and as such, such recruitees were not entitled to relief.

Headnote:Service Law-Central Civil Ser­vice-Respondent passed I.A.S. examina­tion-Placed at serial No. 221 in category III-Recommended for ap­pointment in Class II service in Customs Department-Appointed and working as Customs Appraiser Class II with effect from 10-11-1976-Grievance that customs department wrongly notified Class I posts in 1976 as 35 vacancies existed as against 97 vacancies includ­ing temporary vacancies of long term duration-Plea in 1993 that wrong notification deprived him of Class I post-CAT accepting plea and granting relief-Depart­ment directed to appoint respondent in Class I post adjusting vacancies in accordance with quota system of direct recruits without benefit of pay and allowance till appointment to Class I post-On merit CAT justified-Delay in claim defeats equity-After more than 10 years process of selection and notification of vacancies cannot and ought not be reopened in the interest of proper functioning and morale of concerned services - Respondent had already been appointed pursuant to judgment of CAT-Warrants no interference-Other candidates put in similar situation cannot claim benefit of Tribunal’s judgment.

       Held : The appellants have conceded that as per the Recruitment Rules pertaining to this Department, there is a quota of 50% for direct recruits and 50% for promotees. The vacancies which have to be consid­ered for applying the quota of 50% for direct recruits, are not just permanent vacancies but also temporary vacancies of long term dura­tion. However, by mistake, upto the year 1990, only permanent vacan­cies which were available to direct recruits on the basis of 50% quota were notified. The position has been rectified from the year 1990. The appellants also accept that had temporary vacancies of long duration been taken into account in 1974, 97 vacancies should have been noti­fied. The Tribunal has, in this connection, rightly referred to a memorandum issued by the Central Board of Revenue dated 20.4.1953 in which the procedure for confirmation, promotion, reversion, retrench­ment etc. in grades which are filled partly by direct recruits and partly by promotions, has been laid down. This memorandum clearly mentions that in filling up the permanent vacancies and long term vacancies and vacancies which though temporary in the first instance, are likely to be long term or permanent vacancies, for example, posts sanctioned for specified periods likely to be renewed, the proportion fixed for direct recruits and promoted officers should be rigidly maintained. Temporary vacancies like leave vacancies may, however, be filled by promotion of departmental members irrespective of the quota fixed for them. The same position is maintained in Office Memorandum dated 8.6.1967 issued by the Ministry of Home Affairs which specifies, “All clear vacancies arising in a post/grade/service due to death, retirement, resignation, promotion of incumbents from one post to higher post/grade, including deputation for a period exceeding 3 years, and vacancies arising from creation of temporary posts which are likely to be made permanent or continued on a long term basis should be filled according to the provisions of the recruitment rules and brought on to the recruitment roster.” The appellants, therefore, were required to notify not just permanent vacancies but also tempo­rary vacancies of a long term duration and to determine the total number of vacancies available for direct recruits for their 50% quota, accordingly. (Para 4)

       The appellants submitted before us with some justification, that in a writ petition which was filed in the year 1985, appointments which were made as far back as in the year 1974, ought not to have been disturbed. If a similar relief is to be granted to all those who were in the merit list of 1974 of I.A.S. and Allied Services examination and who were placed in Class II posts because of wrong notification of vacancies in the year 1974, there would be a complete disruption in the postings and positions of persons appointed as far back as in the year 1974 who are now occupying various posts not merely in this department but in other various Allied Services as well. The same would be the position if the vacancies for any subsequent years from 1975 to 1990 are now recalculated and the initial posting given to a large number of candidates during these years are now disturbed. They are, undoubtedly, right about this apprehension. Delay defeats equity is a well known principle of jurisprudence. Delays of 15 and 20 years cannot be overlooked when an applicant before the Court seeks equity. It is quite clear that the applicants for all these years had no legal right to any particular post. After more than 10 years, the process of selection and notification of vacancies cannot be and ought not to be reopened in the interest of the proper functioning and morale of the concerned services. It would also jeopardise the existing positions of a very large number of members of that service. The respondent, howev­er, submitted that he has, in fact, been given the relief by the Tribunal. As a result, various orders have been issued granting him Group ‘A’ appointment and subsequent promotions-though these are made subject to the outcome of this appeal. The only question is, whe­ther having upheld the merits of his contention, we should not take away the benefit which the respondent has actually obtained under the orders of the Tri­bunal. (Para 6)

       Held further : It would be fair to the respondent to take away the benefit which he has secured on the basis of the contentions which are accepted as justified. We, therefore, maintain the relief which has been granted to the respondent. But obviously after this lapse of time, such relief cannot be granted to anybody else. (Para 7)

       Further held : One intervention application is before us which was filed in the year 1996 by a person who was recruited in the year 1975. The appel­lants have also pointed out that after the decision of the Tribunal in the present case, they have received a number of representations from other persons who were appointed during the period 1974 upto 1990. Such belated applications cannot now be considered. We, therefore, dismiss the intervention application. We make it clear that the present order will operate only in respect of the respondent for reasons which we have set out earlier. We also make it clear that in notifying vacancies available to direct recruits the appellants are bound to take into account permanent as well as temporary vacancies of long duration as per the office memoranda of 20-4-1953 and 8-6-1967. (Para 8)