2009 Supreme(SC) 1730

2009(7) Supreme 424
SUPREME COURT OF INDIA
Tarun Chatterjee and Dr. B.S. Chauhan, JJ.
Shiba Shankar Mohapatra & Ors. — Appellants
versus
State of Orissa & Ors. — Respondents
Civil Appeal Nos. 7537-7541 of 2009
(Arising out of SLP (C) Nos.13237-13241 of 2008
Decided on : 12-11-2009

IMPORTANT POINT
Statutory rules cannot be amended by Executive instructions but “if the rules are silent” on any particular point, Government can fill up the gaps by issuing executive instructions, in conformity with the existing rules.
2. Any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period.

Headnote:Service Law-Interse seniority – Whether in absence of any statutory rule for determining their seniority as SIs, Tribunal could disturb the uninterrupted practice in the State to place SI(St) above SI(g) while preparing their inter se seniority – Held administrative interpretation may provide the guidelines for interpreting Rule or executive instruction and may be accepted unless it is found in violation of the Rules itself – The Court may not be bound to accept the mistaken construction of the statutes by those who had been dealing with working of the Statute – In instant Appeals, this fact had been mentioned at several places by appellants but had not been considered either by Tribunal or by High Court –. Counsel for the State had denied the facts submitting that after receiving the opinion of the Law Ministry as well as of the Home Ministry, the practice was changed –In absence of any finding of fact recorded by either of the Courts below, held not safe to give due weightage to doctrine in the facts and circumstances of the case – More so, the judgment of the Tribunal treating opinion of the Law Ministry and Home Department as statutory rules/Executive instructions was not worth acceptance- Statutory rules cannot be amended by Executive instructions but “if the rules are silent” on any particular point, Government can fill up the gaps by issuing executive instructions, in conformity with the existing rules- In absence of any statutory rules, the executive instructions for fixing the inter se seniority of two wings of the Sub – Instrutions could have been issued by the State Government – Admittedly, no such executive instruction had ever been Issued – The letters issued by the Government Departments, being merely opinion of the Departments could not be conferred status of the executive instructions – Appeals disposed of (Paras 10 to 13, 30 to 35)

        Principle of contemporanea exposition – Scope and ambit of – Principle of contemporanea exposition i.e. interpreting a document by reference to exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction- The administrative construction, i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc. generally should be clearly wrong before it is over –turned-Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive- However, it may be disregarded for cogent reasons – The executive interpretation placed by those who are charged with executing the statute, though not binding, is nevertheless entitled to considerable weight as highly persuasive – However, the application of doctrine in respect of modern Statutes has been doubted by this Court (Paras 8 to 10)

        Service Law – Interse seniority – Petition disputing the long standing seniority filed at a belated stage – Maintainability – Any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period – The principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay-Held it would be a sound and wise exercise of jurisdiction for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters. (Paras 16 to 29)

       Facts of the Case :

        1. Most of the officers appellants/respondents involved in all these five appeals, had been appointed in 1972-73 onwards as SIs (g) and SIs (St). The eligibility for appointment had been different for both the wings. An additional qualification of stenography was required for the post of SI (St). After selection, candidates who were appointed as SIs (St) were given direct appointment and after five years, thereof, they were sent for training and after successful completion of training, they could become SIs(g) and could be considered for further promotion as Inspectors.

        2. So far as the SIs (g) were concerned after their selection they were sent for training in Police Training College and after completion thereof, they were appointed on probation for 2 years. Most of the officers belonging to both groups had been promoted as Inspectors, Deputy Superintendent of Police and Superintendent of Police and by now retired after attaining the age of superannuation. There are claims and counter-claims regarding issuance of their inter-se seniority lists in 1979, and in the year 1992.

        3. After considering the objections received by the Department, a final inter-se seniority list was issued in 1997 and again in 1999. One SI (g) Parsuram Sahu, appointed in 1968 filed representation before the State Govt. to fix his seniority over and above two officers belonging to the group of SIs (St) and as no order was passed he approached the Tribunal by filing OA No.316/2000 - Parsuram Sahu v. Principal Secretary, Home Department, Govt. of Orissa & Ors. with a prayer for direction to recast the gradation list published in June 1997 and to place him over and above the respondent nos.4 and 5 therein.

        4. The said application was allowed by the Tribunal with a direction to consider the representation of Shri Parsuram Sahu keeping in mind the letter issued by the Home Department dated 3.2.1987 according to which, the seniority of the SIs (St) would be determined after their entry into General wing after passing the Training Course. The other O.A. No.23/2000 - Sudhir Chandra Ray v. State of Orissa & Ors. was decided vide judgment and order dated 8.12.2005 placing reliance upon the judgment in Parsuram Sahu’s case and similar direction was issued. Same remained the fate of OA No.203/2001 - Sushanta Kumar Biswal & Ors. v. State of Orissa & Ors. filed by officers appointed in 1993 as SIs (g) as the said Application was also disposed of by the Tribunal relying upon its earlier judgments in Parsuram Sahu and Sudhir Chandra Ray’s cases.

        5. Being aggrieved, Writ Petition No.624 of 2006 was filed by SIs (St) in the High Court challenging the judgment and order in OA No.203 of 2001, and four other writ petitions against the judgment and order in OA No.23 of 2000. All the said petitions were disposed of by the High Court by a common judgment and order impugned herein. Hence, these appeals.

       Findings of the Court :

        Held administrative interpretation may provide the guidelines for interpreting Rule or executive instruction and may be accepted unless it is found in violation of the Rules itself.The Court may not be bound to accept the mistaken construction of the statutes by those who had been dealing with working of the Statute. In instant Appeals, this fact had been mentioned at several places by appellants but had not been considered either by Tribunal or by High Court. Counsel for the State had denied the facts submitting that after receiving the opinion of the Law Ministry as well as of the Home Ministry, the practice was changed. In absence of any finding of fact recorded by either of the Courts below, held not safe to give due weightage to doctrine in the facts and circumstances of the case. More so, the judgment of the Tribunal treating opinion of the Law Ministry and Home Department as statutory rules/Executive instructions was not worth acceptance. Statutory rules cannot be amended by Executive instructions but “if the rules are silent” on any particular point, Government can fill up the gaps by issuing executive instructions, in conformity with the existing rules. In absence of any statutory rules, the executive instructions for fixing the inter se seniority of two wings of the Sub-Inspectors could have been issued by the State Government. Admittedly, no such executive instruction had ever been Issued. The letters issued by the Government Departments, being merely opinion of the Departments could not be conferred status of the executive instructions. Appeals disposed of