Caveat That A Decision “Cannot Be Cited As Precedent” Is Unique To Supreme Court: Delhi High Court
The Court said that the delay in considering Scientist D promotion was attributable to the Ministry; interview dispensed with, but promotion subject to suitability on remaining FCS parameters
The Delhi High Court has held that the caveat that a decision “cannot be cited as a precedent” is unique to the Supreme Court, whose rulings bind under Article 141 of the Constitution of India. The Bench expressed serious doubt that any other court can direct that its decision will not be cited in other cases. It said that if lower courts claimed such authority, similarly placed litigants could receive different treatment, which would be impermissible.
Accordingly, following Nakul Dev v. Union of India, it upheld a Tribunal order granting a retired Scientist ante-dated in situ promotion under the Flexible Complementing Scheme (FCS), with the interview requirement dispensed with.
The Bench held that the Ministry of Environment, Forest and Climate Change cannot rely on the bar on retrospective promotion to defeat the claim where the delay in assessment was wholly attributable to it. Applying Union of India v. S.K. Murti 2011 SCC OnLine SC 1655, it said allowing such a defence would let the Ministry capitalise on its own default. The Court upheld ante-dating of the respondent’s promotion as Scientist C to January 1, 2006. For Scientist D from January 1, 2010, the promotion is subject to his being found suitable on the remaining FCS parameters, as the interview cannot be held after his retirement.
A Bench of Justice C. Hari Shankar and Justice Vinod Kumar observed, “...the distinction between decisions which operate merely as decisions and not as precedents, and those which operate as precedents, is unique to the appellate jurisdiction of the Supreme Court. It is in order to avoid confusion and difficulty which, otherwise, may be faced by Courts lower in the judicial hierarchy, when dealing with decisions of the Supreme Court, as to whether they are to be treated as binding precedents or otherwise, that the Supreme Court has, in certain cases, clarified that the decision is not to be treated as a precedent in any other case. This caveat is, therefore, unique to the Supreme Court, as its decisions are constitutionally binding by virtue of Article 141 of the Constitution of India. Even if, therefore, the facts of the case, as they present themselves before a Court lower in the judicial hierarchy, are similar to those which were before the Supreme Court in one of its decisions, it would not be possible to follow the decision as a binding precedent if, in that decision itself, the Supreme Court has clarified to the contrary. The application of Article 141 would, therefore, stand excepted”, the Court said.
“If Courts, lower in the judicial hierarchy from the Supreme Court, also arrogate, to themselves, the authority to clarify that decisions rendered by them would not be treated as binding precedents, it could result in a situation in which litigants, who may be similarly circumstanced on facts, would receive different treatments from the Court. Ex facie, this would be impermissible”, the Court noted further.
Balendu Shekhar, CGSC appeared for the petitioners and Advocate Sudarshan Rajan appeared for the respondent.
The respondent, Om Prakash, was a Scientist B in the Ministry of Environment, Forest and Climate Change. He was granted in situ promotion as Scientist C under the FCS from July 2, 2007, and retired in June 2013. He claimed promotion as Scientist C from January 1, 2006, and as Scientist D from January 1, 2010, the dates on which he became eligible. The Central Administrative Tribunal allowed his application in January 2024. It relied on a 2013 Office Memorandum of the Ministry listing him as entitled to ante-dating, and on an earlier Tribunal decision in Nakul Dev v. Union of India. The Department of Personnel and Training had restrained implementation of ante-dating without Appointments Committee of the Cabinet approval. The Ministry and the Department challenged the Tribunal’s order in the High Court.
The petitioners relied on recruitment rules barring retrospective promotion and on DoPT memoranda describing the FCS as a rigorous merit-based assessment. They argued that the respondent was never assessed for Scientist D and that Nakul Dev was rendered in personam. The respondent argued that the Ministry could not take advantage of its own wrong in delaying assessments, relying on Union of India v. S.K. Murti.
The Court held that identical submissions had been rejected in Nakul Dev, whose facts “practically mirror” the present case. It also held that S.K. Murti, where the Supreme Court affirmed promotion from the date of eligibility, covers the controversy. It found that the Ministry’s delay in assessment could not be used against the employee.
“At the same time, as Mr. Balendu Shekhar correctly points out, the respondent has superannuated in the meanwhile, and it is not possible to interview him for in situ promotion as Scientist D under the FCS. Equally, however, it would be wholly unjust, inequitable and unfair to deny the said benefit to the respondent, especially as the delay in consideration of the respondent for in situ promotion as Scientist D under the FCS is wholly attributable to the MOEFCC. As has been correctly held by this Court in S.K. Murti, and upheld by the Supreme Court, allowing such a defence would amount to permitting the MOEFCC to capitalise on its own default”, it noted.
On the caveat in Nakul Dev, the Court said it is one thing to state that a decision rests on peculiar facts, and another to bar its citation. Relying on the Supreme Court’s observations in NBCC (India) Ltd. v. State of West Bengal, it held that the distinction between decisions and precedents is unique to the Supreme Court’s appellate jurisdiction. It added that if lower courts entered such caveats, similarly placed litigants could be treated differently. A Tribunal’s decision, it noted, cannot bind the High Court in any case.
Cause Title: Union of India & Anr. v. Om Prakash (Neutral Citation: 2026:DHC:9162-DB)
Appearances:
Petitioners: Balendu Shekhar, CGSC, Krishna Chaitanya and Divyansh Singh Dev, Advocate.
Respondent: Sudarshan Rajan, Hitain Bajaj and Ria Setiya, Advocates.