IMPORTANT POINTS
In service matters, especially with regard to promotion, the aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter.
Mere repeated representations cannot be sufficient explanation for delay.
Subsequent pronouncement by Supreme Court cannot revive a dead and stale claim.

Headnote:(a) Service law – Promotion – BSF (Seniority, Promotion and Superannuation of Officers) Rules of 1978 – Benchmark – ACR ‘good’ – Modified to ‘very good’ from 08.05.1990 – Cause of action arising on initial supersession – Respondents not availing it to challenge the same – Kept on filing representations which were rejected by reasoned orders – Respondents filing writ petitions belatedly – In service matters, especially with regard to promotion, the aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter – If not done, third party rights accrue in the meantime to those who are subsequently promoted. (Para 9)
       (1975) 1 SCC 152 – Relied upon
       (2008) 8 SCC 725; (2013) 9 SCC 566 – Distinguished
       (b) Constitution of India – Article 226 – Delay and latches – Mere repeated representations – Not sufficient explanation for delay – Belated direction for retrospective consideration would have destabilising effect. (Para 11, 12)
       (2010) 2 SCC 59; (2006) (1) SCC 368; (2008) 10 SCC 115 – Relied upon
       A.I.R. 1954 Bom. 202 – Cited with approval
       (c) Administration of justice – Cause of action – Dead and stale claim – Subsequent pronouncement by Supreme Court – Cannot revive the claim. (Para 15)
       (2013) 12 SCC 179 – Relied upon
       Facts of the case:
       The respondents in the two writ petitions were superseded in the years 1996 and 2000, respectively. Both of them were subsequently promoted on 28.11.1997 and 16.06.2003 as Second-in-Command and Commandant respectively. Subsequently, both of them submitted several representations for promotion from the date of supersession. Orders rejecting the representations, along with reasons, were duly communicated to them more than once.
       Separate writ petitions were filed by them on 25.09.2016. The common plea taken was that the entry ‘good’ in their annual confidential reports (ACRs) for the relevant years was an adverse remark in view of the benchmark of ‘very good’. Since the adverse entry had not been communicated to them, it could not be taken into consideration, requiring reconsideration for promotion from the date of supersession.
       High Court directed retrospective consideration for promotion of the respondents to the post of Second-in-Command and Commandant respectively from the date that their juniors had been promoted, along with all consequential benefits.
       Finding of the Court:
       Impugned judgment is not sustainable.
       Result: Appeals allowed.

JUDGMENT :

Navin Sinha, J.

Leave granted.

2. These two appeals arise from a common order dated 05.05.2017, directing retrospective consideration for promotion of the respondents to the post of Second-in-Command and Commandant respectively, in the Border Security Force (BSF), from the date that their juniors had been promoted, along with all consequential benefits.

3. The respondents in the two writ petitions were superseded in the years 1996 and 2000, respectively. Both of them were subsequently promoted on 28.11.1997 and 16.06.2003 as Second-in-Command and Commandant respectively. Subsequently, both of them submitted several representations for promotion from the date of supersession. Orders rejecting the representations, along with reasons, were duly communicated to them more than once. After the pronouncement in Sukhdev Singh v. Union of India & ors., (2013) 9 SCC 566 affirming Dev Dutt v. Union of India & ors., (2008) 8 SCC 725, separate writ petitions were filed by them on 25.09.2016. The common plea taken was that the entry ‘good’ in their annual confidential reports (ACRs) for the relevant years was an adverse remark in view of the benchmark of ‘very good’. Since the adverse entry had not been communicated to them, it could not be taken into consideration, requiring reconsideration for promotion from the date of supersession.

4. Learned counsel for the appellants submitted that the claims of the respondents were highly belated and stale. The writ petitions ought to have been dismissed on the ground of delay and laches. Specific objection had been taken in the counter affidavit, including the cascading effect that it would have had upon those promoted earlier to the respondents, and which would lead to administrative chaos. Mere filing of representations or a subsequent judgement, could not be sufficient justification to entertain such belated claims, dehors the facts of a case. The High Court ought not to have given directions to consider their candidature with retrospective effect.

5. Learned counsel for the respondents submitted that enunciation of law by this Court will always have to be given retrospective effect, unless it is made prospective specifically. The grading ‘good’ in the facts of the case was adverse as the benchmark for promotion was ‘very good’. In view of the law laid down in Dev Dutt (supra) as affirmed in Sukhdev Singh (supra), it was mandatory for the appellants to have communicated such adverse remarks to the respondents. In absence of such communication, these remarks could not have been considered to deny promotions. The respondents were genuinely and bonafide pursuing their grievances before the authorities themselves, hoping that they would see reason, and only when they realised that relief would not be forthcoming otherwise, they approached the High Court ultimately.

6. We have considered the submissions on behalf of the parties. The only question for consideration is the applicability of the law as declared in Dev Dutt (supra) and affirmed in Sukhdev Singh (supra) to the respondents in the facts and circumstances of the present case.

7. The benchmark for promotion to the posts in question under the BSF (Seniority, Promotion and Superannuation of Officers) Rules of 1978, as prescribed in paramilitary Promotion DO letter dated 25.11.1988 was modified on 08.05.1990 from ‘Good’ to ‘Very Good’. The respondent Chaman Rana, a Deputy Commandant was considered for promotion to the rank of Second-in-Command at the departmental promotion committee (DPC) meeting held on 13.09.1996 but could not make the grade in view of the criteria prescribed in DO letter dated 08.05.1990. The respondent represented on 20.02.1997 against his supersession. An order of rejection with reasons was communicated to him on 25.03.1997. The cause of action had, therefore, accrued to seek relief before a court of law. Nonetheless a repeat representation was made on 31.07.1997, and a reasoned rejection was again communicated on 07.05.19

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2018 Supreme(SC) 288

Cases Referred (8)