CHAIRMAN/MANAGING Director, U.P. Power Corporation Ltd. & Others v. Ram Gopal
1. Leave granted.
2. Uttar Pradesh Power Corp. Ltd. (hereinafter, “UPPCL” ) has
preferred this appeal, assailing an order dated 29.04.2016 passed b y a
Division Bench of the High Court of Judicature at Allahabad (Lucknow
Bench) which in turn upheld the order dated 05.04.2016 passed by a
learned Single Judge whereby Ram Gopal (Respondent)’s writ petition
for setting aside his termination order and directing his consequent re-
instatement, was allowed.
FACTUAL BACKGROUND
3. UPPCL conducted selections for certain Class IV positions of
Junior Meter Tester & Repairer, Mate and Meter Coolie/Chaukidar and
declared results on 31.08.1978 through an Office Memorandum. The
Respondent emerged as one of the successful candidates f or being
appointed as Meter Cooli/Chaukidar. Owing to subsequent discovery of
certain irregularities in the selection process, UPPCL c ancelled these
selections on 03.11.1978 and consequently terminated services of al l
appointees on 07.11.1978.
4. Shyam Behari Lal, another successful candidate wh ose
services too had been terminated, promptly approached the jurisdictional
High Court which allowed his writ petition on 26.10.1989 observing that
no reasons had been assigned for the termination. UPPCL unsuccessfully
filed an intra-court appeal, and thereafter approached this Court by way
of Civil Appeal No. 7123 of 1993 ( U.P. State Electricity Board and
Others v. Shyam Behari Lal ). The said appeal was allowed vide order
dated 22.11.1993 with an observation that the reason for terminat ion
was ‘writ large’ on the order itself, namely, “ cancellation of result of
selection of operating staff ”, and the matter was accordingly remitted
to the High Court for disposal on merits.
5. Thereafter, a Division Bench of the High Court considered
Shyam Behari Lal’s case and held that though the writ petiti on was
CHAIRMAN/MANAGING DIRECTOR, U.P. POWER
CORPORATION LTD. & OTHERS v. RAM GOPAL
liable to be dismissed on merits, however, considering the peculiar
circumstances wherein Shyam Behari Lal had already served the UPPCL
for 17 years, rendering him jobless might be too harsh a consequence.
The relevant operative part of the order dated 30.05.1997 reads as
follows:
“In view of what has been discussed above, is true that the
petitioner is liable to be dismissed, but in the pe culiar
circumstances of the case and in view of the fact t hat the
petitioners are continuing in service for last seventeen year s,
it would be too harsh to render him jobless at this stage . We
would, therefore, only provide that the opposite parti es may
consider his continuance in service and take a suit able
decision as may be thought appropriate in the facts and
circumstances of the case expeditiously.”
(emphasis supplied)
6. After the initial round of litigation in which Shyam Behari Lal
had obtained relief from the High Court in 1989, the present Respondent
also filed WP No. 7897 of 1990 in July, 1990, impugning the order dated
07.11.1978 terminating his services. A learned Single Judge of the High
Court of Judicature at Allahabad summarily allowed the Respondent’s
writ petition on 05.04.2007 on the premise that the matter was “squarely
covered” by the decision of the High Court dated 26.10.1989 in Shyam
Behari Lal’s case.
7. The aggrieved UPPCL preferred Special Appeal No. 643 of
2007 which was dismissed by a Division Bench vide the impugned order
dated 29.04.2016. Although the Court noted that the order of 1989 relied
upon by the learned Single Judge had been set-aside by this Court and
during fresh consideration of the matter a co-ordinate Bench ha d held
Shyam Behari Lal’s case being devoid of any merit; yet it laid emphasis
on the equitable considerations which were pressed into aid i n Shyam
Behari Lal’s case for his resultant continuation in service. The Division
Bench, thus, dismissed UPPCL’s appeal and held as follows:
“The case of the respondent is similarly situated a s his
appointment pertains to the same selection and no reason has
been assigned in the order of cancellation of appointment of
the respondent. Therefore, learned Single Judge has rightly
extended the parity of the aforesaid judgment and o rder to
the respondent while allowing the Writ Petition.”
519
CONTENTIONS OF PARTIES
8. Vehemently refuting the Respondent’s claim of il legal
termination, UPPCL has preferred this Civil Appeal both ag ainst the
Division Bench’s order dated 29.04.2016, as well as the contempt
proceedings initiated before the High Court by the Respondent. UPPCL
has painstakingly urged that there is no correlation in law or any similarity
in facts between the case of Shyam Behari Lal and the present case of
Ram Gopal.
9. On the other hand, counsel for the Respondent defends the
judgment of the Division Bench, maintaining that both Shyam Behari Lal
and Ram Gopal were recruited through the same office memorandum,
and their services were terminated through the same order. It was urged
that what holds true for one candidate must necessarily also hold true
for the other; and it would be iniquitous and unequal to give rise to a
situation where similarly placed persons end up in vas tly different
situations.
ANALYSIS
10. Having heard learned counsel for the parties at a considerable
length, we find that the impugned order of the High Court is l egally
untenable and cannot be sustained for at least three glaring reasons.
i)Erroneous conclusion of termination order being n on-
speaking
11. First , the Division Bench’s finding that “ no reason has been
assigned in the order of cancellation of appointmen t of the
respondent”, is vividly erroneous. This Court had earlier vide order
dated 22.11.1993 passed in Civil Appeal No. 7123 of 1993 overruled
the High Court’s finding of non-reasoned termination in Shyam Behari
Lal’s case and had held that the termination order was in fact a speaking
order, with the reason for termination being writ large and clearly given.
The High Court’s findings thus undoubtedly fall foul of the observations
made by this Court and the impugned order hence ought to be set-aside
on this count alone.
ii) Lack of similarity between Shyam Behari Lal and R am
Gopal
12. Second, Quite palpably, the High Court has erred in concluding
that the Respondent’s claim fell squarely within the four corners of its
CHAIRMAN/MANAGING DIRECTOR, U.P. POWER
CORPORATION LTD. & OTHERS v. RAM GOPAL
previous decision in Shyam Behari Lal’s case. The relied-upon judgment
dated 30.05.1997 determined unequivocally that there was no merit in
the writ petition and that Shyam Behari Lal’s claim w as “ liable to be
dismissed ”. It was only on account of pending litigation and interim
directions of courts that Shyam Behari Lal had spent 17 years in
employment of UPPCL. Paying heed to these equitable considerations,
and not as a matter of any legal right, the High Court urged the employer
to sympathetically consider his case for retention in employment. This
conclusion of the High Court was not appealed by any party and has
undoubtedly attained finality. Hence, it is clear in law that Shyam Behari
Lal’s termination was legal, and that he had no right of continuation in
service, let alone reinstatement as sought in the present case. The only
question which thus survives is whether the Respondent, Ram Go pal,
could seek parity?
13. At the outset, it is apparent that Shyam Behari Lal and Ra m
Gopal share little similarity. Whereas the former had remained in service
for over seventeen years (except a brief period between Au gust to
November in 1978) and had fought his case tooth and nail, the Respondent
has not been in the employment of UPPCL since 1978. The fact-situation
in Shyam Behari Lal’s case was unique and altogether differ ent from
that of Ram Gopal, and there arises no reason to seek or grant p arity.
Even otherwise, it is a settled canon of common law that equity acts in
personam and not in rem. Hence, there could be no extension of parity
between the case of Shyam Behari Lal and Ram Gopal (Respondent).
iii) Inordinate delay in filing writ petition
14. Finally , the prolonged delay of many years ought not to have
been overlooked or condoned. Services of the Respon dent were
terminated within months of his appointment, in 1978. Statedly, t he
Respondent made a representation and served UPPCL with a legal notice
in 1982, however such feeble effort does little to fill the gap between
when the cause of action arose and he chose to seek its redress al(in
1990).
15. Seen from a different perspective also, it is clear t hat the
Respondent has shown little concern to the settled legal tenets. Even a
civil suit challenging termination of services, if filed by the Respondent,
would have undoubtedly been barred by limitation in 1990. In a similar
situation where the appellant belatedly challenged the promotion of his
521
junior(s), this Court in P.S. Sadasivaswamy v. State of Tamil Nadu 1,
held as follows:
“2. … if the appellant was aggrieved by it he should have
approached the Court even in the year 1957, after th e two
representations made by him had failed to produce any result.
One cannot sleep over the matter and come to the Co urt
questioning that relaxation in the year 1971. … In eff ect he
wants to unscramble a scrambled egg. It is very difficul t for
the Government to consider whether any relaxation o f the
rules should have been made in favour of the appell ant in
the year 1957. The conditions that were prevalent i n 1957,
cannot be reproduced now. …It is not that there is any period
of limitation for the Courts to exercise their powe rs under
Article 226 nor is it that there can never be a case where the
Courts cannot interfere in a matter after the passa ge of a
certain length of time. But it would be a sound and wise
exercise of discretion for the Courts to refuse to exercis e their
extraordinary powers under Article 226 in the case of pers ons
who do not approach it expeditiously for relief and who stand
by and allow things to happen and then approach the Court
to put forward stale claims and try to unsettle set tled
matters…...”
16. Whilst it is true that limitation does not strictly apply to
proceedings under Articles 32 or 226 of the Constituti on of India,
nevertheless, such rights cannot be enforced after an unreasonable lapse
of time. Consideration of unexplained delays and inordinate laches would
always be relevant in writ actions, and writ courts naturally ought to be
reluctant in exercising their discretionary jurisdiction to protect those
who have slept over wrongs and allowed illegalities to fest er. Fence-
sitters cannot be allowed to barge into courts and cry for their rights at
their convenience, and vigilant citizens ought not to be treated alike with
mere opportunists. On multiple occasions, it has been restated that there
are implicit limitations of time within which writ remedies can be enforced.
In SS Balu v. State of Kerala 2, this Court observed thus:
“17. It is also well-settled principle of law that “delay d efeats
equity”. …It is now a trite law that where the writ petition er
1 (1975) 1 SCC 152.
2 (2009) 2 SCC 479
CHAIRMAN/MANAGING DIRECTOR, U.P. POWER
CORPORATION LTD. & OTHERS v. RAM GOPAL
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 situat ed to the
other candidates who obtain the benefit of the judgment. ”
(emphasis supplied)
17. Similarly, in Vijay Kumar Kaul v. Union of India 3 this Court
while considering the claim of candidates who, despite being higher in
merit, exercised their right to parity much after those who were though
lower in merit but were diligently agitating their rights, this Court observed
that:
“27. …It becomes an obligation to take into conside ration
the balance of justice or injustice in entertaining the petition
or declining it on the ground of delay and laches. It is a mat ter
of great significance that at one point of time equ ity that
existed in favour of one melts into total insignifi cance and
paves the path of extinction with the passage of time.”
18. We may hasten to add that these principles may not, however,
apply to judgments which are delivered in-rem. The St ate and its
instrumentalities are expected In such category of cases to themselves
extend the benefit of a judicial pronouncement to all simila rly placed
employees without forcing each person to individually knock the doors
of courts. This distinction between operation of delay and lac hes to
judgments delivered in-rem and in personam, is lucidly captured in State
of Uttar Pradesh v. Arvind Kumar Srivastava 4, laying down that:
“22.1. The normal rule is that when a particular se t of
employees is given relief by the court, all other i dentically
situated persons need to be treated alike by extend ing that
benefit. Not doing so would amount to discriminatio n and
would be violative of Article 14 of the Constitution of India.
This principle needs to be applied in service matte rs more
emphatically as the service jurisprudence evolved b y this
Court from time to time postulates that all similarly sit uated
persons should be treated similarly. Therefore, the normal ru le
would be that merely because other similarly situated persons
did not approach the Court earlier, they are not to be treated
differently.
3 (2012) 7 SCC 610
4 (2015) 1 SCC 347
523
22.2. However, this principle is subject to well-re cognised
exceptions in the form of laches and delays as well as
acquiescence. Those persons who did not challenge t he
wrongful action in their cases and acquiesced into the s ame
and woke up after long delay only because of the reason th at
their counterparts who had approached the court earlier in
time succeeded in their efforts, then such employee s cannot
claim that the benefit of the judgment rendered in the case o f
similarly situated persons be extended to them. They would
be treated as fence-sitters and laches and delays, and/or the
acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases
where the judgment pronounced by the court was judgm ent
in rem with intention to give benefit to all similarly situated
persons, whether they approached the court or not. With such
a pronouncement the obligation is cast upon the author ities
to itself extend the benefit thereof to all similar ly situated
persons. Such a situation can occur when the subject-matter
of the decision touches upon the policy matters, like sc heme
of regularisation and the like (see K.C. Sharma v. Uni on of
India [K.C. Sharma v. Union of India, (1997) 6 SCC 72 1 :
1998 SCC (L&S) 226] ). On the other hand, if the judgment
of the court was in personam holding that benefit of the sai d
judgment shall accrue to the parties before the cou rt and
such an intention is stated expressly in the judgment or it c an
be impliedly found out from the tenor and language of the
judgment, those who want to get the benefit of the said
judgment extended to them shall have to satisfy tha t their
petition does not suffer from either laches and del ays or
acquiescence.” (Emphasis applied)
19. The order passed by the High Court for retention of Shyam
Behari Lal in service, does not possess any ingredient of a Judgment in-
rem. The above cited exception, therefore, does not come to the
Respondent’s rescue. It is also pertinent to mention that neither has it
been pleaded nor is it apparent from the material on recor d that the
Respondent was unable to approach the court-of-law in time on account
of any social or financial disability. Had such been the case, he ought to
have availed free legal aid and should have ventilated his grievances in a
CHAIRMAN/MANAGING DIRECTOR, U.P. POWER
CORPORATION LTD. & OTHERS v. RAM GOPAL
timely manner. Instead, he seems to be under the assumpti on that the
termination order is illegal, that he consequently has a right to be
reinstated, and that he can agitate the same at his own sweet-will. Neither
of these three assumptions are true, as elaborated by us earl ier.
CONCLUSION
20. For the reasons aforementioned, the appeals are allowed. The
impugned order delivered by the learned Single Judge on 05.04.2007 as
well as the order dated 29.04.2016 of the Division Bench upholding it,
are set aside. Respondent’s writ petition is consequently dismissed. As a
sequel thereto, the High Court’s interim order dated 02.11.2016 in
Contempt No. 1271 of 2016, which is under challenge in SLP (Crl.) No.
2014 of 2017, is also quashed and the contempt petition stands dismissed.
No order as to costs.
Kalpana K. Tripathy Appeals allowed.