UNION OF INDIA AND ORS. v. SANDEEP KUMAR SWAROOP AND ORS.

to the case of contract, tort or criminal, whereas judgments in rem affect a persons status, but as noticed above, judgments in rem can be classified into two classes; one, which is conclusive against all the world, and the other, which is not conclusive, though admissible and treated as a precedent in other proceedings. The latter decisions, not being conclusive, can be reversed (see Hill Vs. Clifford, [1907] 2 Ch.

236 at page 244).

43. The aforesaid principle finds recognition in service law in K. Ajit Babu & Ors. Vs. Union of India & Ors. (1997) 6 SCC 473, which dealt with the benefits and advantages of adherence to the principle of precedents. This judgment dealt with the question of a W.P. (C) Nos. 9413/2016 & 1473/2017 Page 40 of 46 decision of the Central Administrative Tribunal on certain principles of law determining seniority of employees which had affected the employees who were not parties to the lis, and the course of action available to them. It was observed, consistency, certainty and uniformity in the form of judicial decisions were benefits arising from the doctrine of precedent and, therefore, the Tribunal would be bound by earlier judgments which act as precedents. Third parties, who are adversely affected, would be persons feeling aggrieved and in terms of provisions of Section 22 of the Administrative Tribunals Act, 1985 could seek review by re-opening the case. If the Tribunal dissents from the view expressed earlier, the matter can be referred to a larger/full bench. Of course, against the rejection of the said application for review, the aggrieved party can file a writ petition.

44. K. Ajit Babu (supra), therefore, dealt with a case where a judgment had wider repercussions and had the effect of a judgment in rem in the second sense. (see Wazir Singh & Ors. Vs. State of Haryana and Ors. 1995 (suppl.) 3 SCC 697, wherein with reference to litigation by the State of Haryana, it was observed that multiplicity of litigation should be avoided. When there is an earlier decision, it W.P. (C) Nos. 9413/2016 & 1473/2017 Page 41 of 46 should be made applicable to non-parties as well, as the principle of law was settled).

45. Recently, the Supreme Court in State of Uttar Pradesh and Ors. Vs. Arvind Kumar Srivastava & Ors., (2015) 1 SCC 347 had examined this issue on the question of judgments in service law which lay down a principle and, therefore, are treated as judgments in rem in the second sense. Several decisions on both sides were referred to and the following legal principles were set out:- "22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under. 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same W.P. (C) Nos. 9413/2016 & 1473/2017 Page 42 of 46 and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of 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 judgment 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 authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can 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 that their petition does not suffer from either laches and delays or acquiescence." A careful reading of the aforesaid principles reveals that the principle of in rem in the second sense is not absolute. It is preferable to follow the said principle so that there is no discrimination or W.P. (C) Nos. 9413/2016 & 1473/2017 Page 43 of 46 violation of Article 14 in service matters for all similarly situated persons should be treated alike and not differently. However, delay and laches as well as acquiescence can be a ground to deny benefit to fence sitters. Those who do not approach the Court in a timely and prompt manner can be denied equal treatment. Thus, it will be right to hold that doctrine of in rem in the second sense is not unconditional or unimpeachable. However, this exception would not apply where the earlier judgment pronounced by the Court is with the intent to give benefit to all similarly situated persons, whether they had approached the Court or not. Benefit should not be extended when the said intent is not there and the judgment expressly or impliedly states that the benefit of the judgment would be extended to those, who had sought to enforce their rights and their petitions were not stale on account of delay and laches or acquiescence.

46. Similar issues have also arisen under taxation laws as it has happened that the tax authorities do not file appeals in similar matters or earlier years. The consensus, it appears, is that the tax or the revenue authorities should not be barred or prohibited from preferring appeal where there is just cause for doing so, it is in public interest or W.P. (C) Nos. 9413/2016 & 1473/2017 Page 44 of 46 where divergent views have been expressed by the Tribunal or the High Courts. [see C.K. Gangadharan & Anr. Vs. Commissioner of Income Tax, Cochin, (2008) 8 SCC 739, Commissioner of Central Excise, Bangalore Vs. Bal Pharma Ltd., Bangalore and Ors. (2011)

2 SCC 620 and Catholic Syrian Bank Ltd. Vs. Commissioner of Income Tax (2012) 3 SCC 784].

47. In view of the aforesaid discussion we would allow the present writ petitions and set aside the directions given in the impugned orders dated 7 January, 2016 in OA No. 4547/2014 and 1 August, 2016 passed in OA No. 3761/2013. However, at the same time, it has to be directed that in order to ensure compliance with paragraphs 5 and 6 of the OM dated 9 November, 1998 the petitioners would undertake an exercise as mandated to decide, whether or not benefit of FCS should be extended and granted to Group B employees of CGWB appointed on or after 9 November, 1998. While carrying out the said exercise the petitioners would keep in mind the fact that 16 or 19 such Group- B officers have been given benefit of FCS as the petitioners did not challenge the orders passed by the Tribunal and there are judgments of the two High Courts which have attained finality. They would ensure W.P. (C) Nos. 9413/2016 & 1473/2017 Page 45 of 46 that there is no disparity or unequal treatment especially in cases where juniors have been granted benefit of FCS. This would not be acceptable, even if we have held that FCS was not immediately or per se applicable to Group-B employees, and had required a considered examination. Noticeably, there has been considerable and unexplained delay. Normally, we would not have fixed any time limit and only directed the petitioners to conduct the aforesaid exercise expeditiously. However the matter has remained pending since 9 November, 1998 and has created litigation all over the country in spite of the mandate given in paragraphs 5 and 6 of the OM dated 9.11.1998. In such circumstances, we direct the petitioners to undertake the said exercise within six months from the date of receipt of a copy of this order. The Secretary of the Ministries and the head of the CGWB would ensure that the task and exercise is completed within the said period and no application for extension of time is moved. We also observe that if any application for extension of time is made, the Court would take a strict view of the matter and may even impose costs, if justified. W.P. (C) Nos. 9413/2016 & 1473/2017 Page 46 of 46

48. With the aforesaid directions, the writ petitions are disposed of without any order as to costs. (SANJIV KHANNA) JUDGE (CHANDER SHEKHAR) JUDGE September 1 , 2017