Himachal Pradesh High Court
S.C. Kainthla vs Respondents on 1 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 2061/2018 and CWP No. 2292/2018 Reserved on: 18.3.2019 Date of decision: 1.5.2019 CWP No. 2061/2018 S.C. Kainthla .....Petitioner State of H.P. and ors. CWP No. 2292/2018 r to Versus ..... Respondents Rajeev Bhardwaj .....Petitioner Versus State of H.P. and ors. ..... Respondents Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes Whether approved for reporting?1 For the Petitioner(s): Mr. Shrawan Dogra, Senior Advocate with Ms. Nishi Goel, Mr. Harsh Kalta and Mr. Deven Khanna Advocates in CWP No. 2061/2018.
Mr. R.K. Bawa, Senior Advocate with Mr. Prashant Kumar Sharma, Advocate, in CWP No. 2292/2018.
1Whether the reporters of the local papers may be allowed to see the Judgment?
Yes ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 2 For the Respondent(s): Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Additional Advocates .
General with Ms. Svaneel Jaswal, Deputy Advocate General and Mr. Ram Lal Thakur, Assistant Advocate General for the respondentState.
Mr. K. D. Sood and Ms. Jyotsna Rewal Dua, Senior Advocates with Ms. Shalini Thakur and Mr. Shubham Sood, Advocates, for respondent No.2.
Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lall and Ms Sanjivani Sood, Advocates, for respondents No. 3 and 4 in both the petitions.
Mr. B. C. Negi, Senior Advocate with Mr. Nitin Thakur, Advocate, for respondents No. 5 and 6 in both the petitions.
Tarlok Singh Chauhan, Judge The main question raised in these writ petitions relates to inter se seniority dispute amongst three streams of H.P. Higher Judicial Service i.e. (i)the officers promoted on the basis of meritcumseniority under 50% quota (Mr. S.C. Kainthla's case);
(ii) the officers promoted on the basis of limited departmental competitive examination under 25% quota, as it then existed (Mr. ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 3 Rajeev Bhardwaj's case) and (iii) the direct recruits under 25% quota.
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2 Both the writ petitioners have sought identical reliefs, which read as under:
(i) create the cadre of Civil Judge Senior Division w.e.f.1.7.1996 in accordance with the directions of the Hon'ble Supreme Court of Indian in All India Judges' Association and others vs. Union of India and others (2002) 4 SCC 247 and I.A. No.334 of 2014 in Writ Petition (Civil) dated 28.4.2016 and to grant consequential benefits to the petitioner.
(ii) follow the postbased roster w.e.f. 31.3.2003 by following the report of the Hon'ble Judges Committees and declare the petitioner senior to respondents No.3&4 and to grant all consequential benefits to the petitioner, including considering him for elevation as Judge of High Court by placing relevant material before the competent authority.
(iii) quash the seniority/gradation lists circulated w.e.f.
1.1.2005 onwards particularly gradation list Annexure P16 circulated on 18.1.2018 showing petitioner junior to respondents No. 3 and 4, as being contrary to the directions of the Hon'ble Supreme Court of India in All India Judges Association Case (supra) and H.P. Judicial Services Rules, 2004.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 4(iv) issue any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in .
the nature and circumstances of the case.
3 Before arguments on the merits of the case could be heard, the learned counsel for the respondents questioned the very maintainability of these petitions by raising various preliminary objections like delay and latches, the petition being barred by provisions contained in Order 23 Rule 1, Order 2 Rule 2 (3) and Section 11 CPC and the petitioners being guilty of suppressio veri and suggestio falsi etc. 4 I have heard the learned counsel for the parties and have gone through the pleadings and other material placed on record as also records of the case carefully.
5 Both the writ petitioners were inducted into service as Sub Judges as they were so called at that time.
The petitioner Mr. S.C. Kainthla was appointed as Sub Judge on 1.2.1984 and on 26.12.2006 he was promoted to the cadre of District and Sessions Judge, which post he continues to hold till date, whereas petitioner No.2 Mr. Rajeev Bhardwaj was appointed as Sub Judge on 1.2.1988 and was promoted to the cadre of District and Sessions Judge on ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 5 26.12.2006, after qualifying limited departmental competitive examination under 25% quota. He too continues to hold this .
post till today.
6 At the time of appointment of the petitioners, H.P. Higher Judicial Service Rules, 1973 were in force and the recruitment was made on the basis of ratio between the direct recruits and promotees by 2:1.
7 As regards the private respondents No. 3 to 6, they were appointed as direct recruits in the cadre of District and Sessions Judge on 18.5.2004, 17.12.2006, 27.9.2007 and 23.10.2009 respectively.
8 The matter regarding pay and other conditions of services of Judicial Officers was referred to by the Hon'ble Supreme Court to the commission in All India Judges' Association vs. Union of India, 1992(1) SCC 119, which was headed by Hon'ble Mr. Justice K. Jagannath Shetty. The commission submitted its report known as first national report on 11.11.1999 and the same was considered in All India Judges' Association vs. Unionof India 2002 (4) SCC ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 6
247. It was by virtue of this judgment that directions for the first time were issued with respect to recruitment to the .
Higher Judicial Service i.e. cadre of District and Sessions Judges, which was henceforth to be from three streams i.e.
(a) 50% of the promotion from amongst the Civil Judges (Senior Division) on the basis of meritcumseniority and after passing suitability test; (b) 25% by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than 5 years qualifying service; and (c) 25% of the posts to be filledup by direct recruitment from amongst the eligible Advocates on the basis of written and viva voce test conducted by the respective High Courts. The Hon'ble Supreme Court further directed that appropriate Rules shall be framed by the High Court as early as possible in compliance to the aforesaid directions.
9 The grouse of the petitioners is that the directions passed by the Hon'ble Supreme Court in All India Judges' Association's case have not been followed by the High Court in its letter and spirit by applying roster as per the judgment ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 7 of the Hon'ble Supreme Court in R. K. Sabharwal vs. State of Punjab, 1995(2) SCC 745 and, therefore, the private .
respondents, who were directly recruited, have illegally and arbitrarily been shown senior to them. This anomaly and disparity has occasioned because of the High Court instead of following post based roster has illegally applied the vacancy based roster.
10 to In order to appreciate the controversy in issue, a brief factual background of the case needs to be noticed.
11 In the year 1999, the H.P. Judicial Officers Association along with some of its individual members including the present petitioners, whose names appeared at Sr. No. 16 (Mr. S.C. Kainthla) and at Sr. No. 28 (Mr. Rajeev Bhardwaj), in the memo of parties, filed CWP No. 61/1999, wherein they assailed the appointment of the directly recruited Additional District and Sessions Judges and claimed various reliefs in the writ petition. However when the same came up for hearing on 18.4.2005, on account of subsequent developments and on the agreement of the ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 8 parties, the same was disposed of as settled and the following directions came to be passed: .
"1. Only in so far as the placement of direct recruited Additional District Judges in the aforesaid gradation list is concerned (and for no other reason or ground), it shall be open to petitioner No.1 as well as other aggrieved officers,if any, to file objections or make representations against their alleged improper placement and for seeking rectification/redressal of grievances. Such objections shall be filed and such representations shall be made, if any, latest by 30 th April, 2005.
2. The High Court on its administrative side shall receive the aforesaid objections/representations, process the same, examined and consider them on their merits and dispose them of in accordance with law.
3. If in the process of consideration, the High Court feels that anyone whose name has been included in the aforesaid gradation list needs to be displaced to a lower position, an opportunity of being heard shall be afforded to such person but only through the mechanism or a written representation. No such person shall have any right of a personal hearing.
4. The High Court on its administrative side shall take a final decision in the aforesaid matter on its merits ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 9 and in accordance with law as expeditiously as possible and in any case by 31st July, 2005.
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5. If anyone feels aggrieved by the decision of the High Court, it shall be open to such person to approach this Court again on the judicial side.
In view of the aforesaid order, no earlier representation filed on the subject by any one shall be entertained. All such earlier representations shall be consigned to records without taking any action thereupon.
Since the writ petition is being disposed of as settled in the light of the aforesaid agreement between the parties, we wish to clearly place on record that we have not gone into any question relating to the merits of the controversy between the parties nor have expressed any opinion with regard thereto. All questions and issues are left upen.
he writ petition is disposed of. All interim orders shall stand vacated."
12 In terms of the aforesaid directions, the H.P. Judicial Officers Association and various other Judicial Officers of the then H.P. Higher Judicial Service and H.P. Judicial Service filed objections, which were referred to Two Judge Committee and all the representations were considered and recommendations for rejecting all the ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 10 representations were made by the said Committee. The matter was accordingly placed before the Full Court and vide .
its meeting held on 22.8.2005 accepted the recommendations of the Committee and resultantly, all the representations including the one raised by the H.P. Judicial Officers Association filed on its behalf and its members were also rejected and information in this regard was duly sent to all the the representationists vide letter dated 24.8.2005.
13 Now, in case the representation of the Association is adverted to, it would be noticed that in the said representation also, the Association had relied upon and sought implementation of the judgment rendered by the Hon'ble Supreme Court in All India Judges' Association case and had also sought direction for implementing roster as per R.K. Sabharwal's case.
14 It would also be noticed that even though some of the petitioners in CWP No. 61/1999 had been freshly appointed or were working in the cadre of Sub Judges and Senior Sub Judges, however they sought to justify their locus standi to file the representation by stating as under:
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 11The Judicial Officers who are Sub Judges/Senior Sub Judges (now Civil Judges) can also question the .
appointment of 'Direct Recruits' because wrong and excessive 'Direct Recruitment' is marring their future prospects of promotion as Addl. District & Sessions Judges as they belong to feeder cadre having 2/3rd quota (now 3/4th) in the Higher Judicial Service. So, every Civil Judge has legitimate expectation at the time of his appointment to become District and Sessions Judge and also to be considered for appointment to Hon'ble High Court in his turn according to merit and his seniority.
15 Thus, it is evidently clear that the aforesaid representation was not only preferred by the Association, but by all the members of such Association; irrespective of fact that they were Sub Judges or Senior Sub Judges and it essentially meant that the representation that was eventually rejected was on behalf of the petitioners also. Yet despite the representation(s) being rejected by the Full Court neither the Association nor any individual member thereof including petitioners has ever assailed the decision of the Full Court till date and the same has accordingly attained finality, especially qua the petitioners.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 1216 It was only in March 2009 that for the first time the Association, of which the petitioners were members, filed .
I.A. Nos. 234/2009 and 235/2009, before the Hon'ble Supreme Court raising therein similar issues as have been raised in the instant writ petition regarding direct recruitments being made in excess of the quota and roster point not being followed. However, both applications came to be rejected by the Hon'ble Supreme Court vide its order dated 26.03.2009 which reads thus: "In both these applications, the Association of Judicial Officers pray that there should be a roster system in the matter of seniority if there is any violation of the roster system, the applicant would be at liberty to take any appropriate steps. We do not wish to interfere with the applications.
I.A.s are disposed off accordingly."
17 Thereafter, in October 2009 the Association filed WP(C) 532/2009 in a representative capacity before the Hon'ble Supreme Court, wherein also decision of the Full Court was not assailed and it was simply averred that since ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 13 new Rules of 2004 have come into force w.e.f. 20.3.2004, the petitioners did not agitate the matter further on judicial side .
on the assumption that the respondents will do justice to them without forcing them to approach the court of law.
However, even this writ petition was withdrawn by the Association on 14.12.2009 with specific liberty reserved in its favour to move this High Court as is evident from the order dated 4.12.2009, which reads thus: Learned counsel for the petitioner seeks permission to withdraw the petition with liberty to move the High Court. Permission Granted. Writ petition is dismissed as withdrawn.
18 The Association thereafter filed CWP No. 696/2010 on 8.3.2010, which too was withdrawn by it unconditionally on 4.11.2016.
19 At this stage, learned counsel for the petitioners submit that they are not bound by any of the actions in the petitions filed by the H.P. Judicial Service Officers Association as they after having become the members of the Higher Judicial Services had formed a separate association by the name "H.P. Judicial Officers Association" and an ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 14 intimation to this effect had already been sent to the High Court vide letter dated 15.08.2006, a copy whereof has .
already been annexed in rejoinder.
20 No doubt, at one stage, Mr. D.K. Sharma (General Secretary) did inform the Registrar General of the High Court vide letter dated 15.08.2006 seeking recognition of the H.P. Judicial Officers Association. However, this was followed by another letter dated 02.12.2006 whereby he requested the High Court to keep the matter regarding recognition of association pending as the President of the association had been elevated as a Judge of this High Court.
21 Noticeably, no steps were initiated by the Association for its revival. That apart, it would be noticed that even though the specific case of the petitioners is that the members of the Higher Judiciary in the rank of District and Sessions Judges, Additional District and Sessions Judges and Presiding Officers, Fast Track Courts, have no concern with the H.P. Judicial Service Officers Association as they had formed another association by the name "H.P. Judicial Officers Association", however, the fact remains that ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 15 the Judicial Officers in the rank of Additional District and Sessions Judges continued to file writ petitions together with .
the association, as is evident from the memo of parties in CWP No. 696/2010 wherein petitioner No.1 is the H.P. Judicial Service Officers Association, whereas, petitioner No.2 to 6, 8 and 9 are the Officers in the rank of Additional District and Sessions Judges/Presiding Officers, Fast Track Courts.
22 Assuming and accepting the contention of the petitioners cuts across their own argument that the petitions are not barred by delay and laches as even till the year 2010 the petitioners despite being promoted to the cadre and rank of District and Sessions Judges in the year 2006 never assailed the appointment of respondents No. 3 to 6 despite their having been appointed as direct recruits to the post of Additional District and Sessions Judge on 18.5.2004, 17.12.2006, 27.9.2007 and 23.1.2009 respectively.
23 Reverting back to the facts, it would be noticed that the petitioners thereafter approached the Hon'ble Supreme Court by filing I.A. No. 334/2014, which was filed ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 16 by the present petitioners along with two other Judicial Officers i.e. Mr. S.L. Sharma, District and Sessions Judge .
and Mr.J.K. Sharma, Presiding Officer, Labour Court.
24 Surprisingly, the petitioners did not disclose the fact that they had already approached the Hon'ble Supreme Court earlier by filing I.A. Nos. 234/2009 and 235/2009 and after dismissal of the same on 26.3.2009 had already filed Writ Petition(Civil) No.532/2009 and after withdrawing the same had in fact thereafter filed CWP No.696/2010, which was pending before this High Court. They even did not choose to make the direct recruits as party and there was also no mention to the rejection of representations made pursuant to the directions passed in CWP No. 61/1999.
25 Here, it also deserves to be mentioned that CWP No.696/2010 was filed by the H.P. Judicial Services Officers Association through its President, who is none other than, Mr. J.K. Sharma, who also happened to be one of the applicants in I.A. No. 334/2014. The two reliefs sought in the I.A. were identical to the one sought in CWP No. 696/2010.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 1726 On 28.4.2016, I.A. No. 334/2014 came up for consideration before the Hon'ble Supreme Court and in .
absence of the direct recruits, a detailed order came to be passed, which reads thus: "In this application, the applicant has come forward with two distinct prayers. The first prayer is for a direction to the respondents to create cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) with effect from 1.7.1996. It is pointed out to us that the Himachal Pradesh Judicial Officers (Pay, Allowances and Conditions of Service) Act, 2003 (hereinafter referred to as 'the Act of 2003') and Himachal Pradesh Judicial Service Rules, 2004 (hereinafter referred to as 'the Rules of 2004') have already come into force. Section 1(3) of the Act of 2003 states that the Act should be deemed to have come into force on 1st day of July, 1996. Section 3 of the Act of 2003 reads as under: "3. Salaries.Notwithstanding anything contained in any rules made under any other law for the time being in force, regulating the pay, allowances and other conditions of service, or any order or judgment passed by any Court, the Judicial Officers in the State shall be paid the pay scales as specified in the Schedule and the rates of allowances and other conditions of ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 18 service of such Officers shall be such as may be prescribed."
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Section 4 of the Act of 2003 further provides, as under: "4. (1) Subject to the provisions of section 3, the State Government may by notification in the official Gazette, make rule with retrospective effect regulating the pay, allowances and conditions of service of the Judicial Officers." The cadre of Civil Judge(Senior Division) was constituted from 20th March, 2004. As per Rule 3 of the Rules of 2004 the following categorization in the cadre of Civil Judge (Senior Division) and Civil Judge (Junior Division) has been formulated. However, sub Rule (2) of Rule 1 of the Rules of 2004 states that the Rules shall come into force from the date of publication in the Official Gazette and the Gazette Publication was on 20th March, 2004. In the light of the said prescription made in the Rules after the categorization was made under Rule 3(3), the grievance of the applicant has now surfaced. The grievance of the applicant, as rightly pointed out by Mr. Patil, learned senior counsel, based on their prescription contained in Section 3 of the Act of 2003 read along with Section 4, even if the categorization came to be made under the Rules of 2004, the same should have been given effect to retrospectively, in consonance with the specific ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 19 provisions contained in the above referred Sections 3 and 4 of the Act of 2003. We are fully convinced of the .
said submission so made by the learned senior counsel on behalf of the applicant(s).
In such circumstances, the prescription under subRule (2) of Rule 1 of the Rules of 2004 and the Gazette Publication dated 20.3.2004 cannot supersede the specific provision contained in Sections 3 and 4 of the Act of 2003, more so, when the Act of 2003 was deemed to have come into force with effect from 1st day of July,1996.
r In this context, it will be absolutely necessary to note what this Court has directed in paragraph 38 of the judgment rendered in All India Judges' Association and Others v. Union of India and Others reported in (2002) 4 SCC 247. the said paragraph reads as under: "38. We are aware that it will become necessary for service and other rules to be amended so as to implement this judgment .
Firstly, with regard to the pay scales, the Shetty Commission has approved the pay scales with effect from 111996but has directed the same to be paid with effect from 171996. However, it will take some time for the States to make necessary financial arrangements for the implementation of the revised pay scales as approved by this Court with effect from 17 ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 20 1996. The arrears of salary between 171996 to 3062002, will either be paid in cash or the .
States may make the payment by crediting the same in the provident fund account of the respective judicial officers. Furthermore, the payment by creditor otherwise should be spread over between the years 171996 to 3062002 so as to minimize the income tax liability which may be payable thereon. In calculating the arrears, the Government will, of course, take into account the interim relief which r had been granted and drawn by the judicial officers. The amount to be credited in the provident fund account would also be after deducting the income tax payable."
Therefore, even applying the same the applicant is entitled for the direction asked for.
In the said circumstances, the first prayer of the petitioner merits acceptance and the same is granted and the respondents are directed to create cadre of Civil Judge (Junior Division and Civil Judge (Senior Division), as prescribed under the Rules of 2004, and give effect to the same on and from 1.7.1996 with all consequential benefits accrued to those officers who hold the respective cadre post as from that day.
The second prayer of the petitioner is for direction to the respondents to follow "post based ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 21 roster" in appointments to the cadre of District Judges with effect from 31.3.2003. The said prayer is again .
based on the statement of law as propounded in paragraph 49 of the above referred to decision rendered in all India Judges' Association and Others (supra). While stating as to in what manner the 40 point roster is to be determined, this Court directed that appropriate Rules and methods should be adopted by the High Courts and approved by the States wherever necessary by 31.3.2003. When this application was moved, initially on behalf of the High Court, learned Standing Counsel took notice and submitted that in the High Court a Committee has been constituted which is deliberating on this issue, and, therefore, he will be above to report to this Court in a week's time. It is now pointed out by Mr. Patil, learned senior counsel for the applicant(s) that the 34 point roster has been drawn by the High Court based on the cadre strength providing for different points applicable to the promotees by way of limited competitive examination as well as for direct recruits in the entry level District/Additional District and Sessions Judge. It is also brought to our notice that appropriate Rules have also been drawn by the High Court which has been notified by the State Government on 16th March, 2004. The Rules have been captioned as "Himachal Pradesh Judicial Service ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 22 Rules, 2004". Rule 13, which specifies as to how seniority list is to be worked out is to the following .
effect: "RULE13 Seniority(1) Where Officers are recruited to a cadre by promotion and direct recruitment seniority shall be regulated by the roster maintained for such recruitment. Officer appointed against higher point of roster shall rank senior to the Officers appointed against a lower point:
r Provided that no person appointed to a cadre by direct recruitment shall, for the purpose of fixation of his seniority claim any particular place in seniority unconnected with the date of his actual appointment.
(2) Where more than one Officers are promoted to cadre at the same time interse seniority of persons so promoted shall be determined by their intersse seniority in the lower cadre. (3) Where direct recruitment is made to a cadre, the interse seniority of person so recruited shall be in the order in which their names are arranged in the select list.
(4) Every year in the month of January seniority list of Officers in all cadres, shall be prepared and published by the High Court and the lists ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 23 so published shall be issued for the purpose of making promotions to the next higher cadres."
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As far as the method of recruitment for the purpose of Entry Level District Judge is concerned, Explanation II, reads as under: "Appointment to the cadre of the District Judges from categories (a), (b)and (c) shall be in accordance with 40 point roster to be maintained by the High Court in this behalf." Inasmuch as, 34 point roster having been drawn by the High Court and the relevant rules relating to seniority, namely, Rule13 has also come into effect, the only other question to be decided is as to how it should be implemented as from 31.3.2003, as directed by us in the judgment referred to above. While drawing the 34 point roster, the High Court has mentioned that the same would be followed after 31.3.2010.
Having regard to the specific direction of this Court in the judgment referred to above in paragraph 23, we are of the view that it is required to ascertain as to how the 34 point roster for the three different channel are to be worked out. The High Court is, therefore, directed to apply Rule13 which prescribes as to how seniority to be drawn by applying the said Rules, ascertain the roster point for the three different ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 24 categories of promotees and direct recruits and carry out the said exercise from 31.3.2003.
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We, however, direct the High Court to place the said report after carrying out the said exercise, to pass further orders. We only direct the High Court to carry out the said exercise within a period of two months.
List on 14.7.2016.
We make it clear and reiterate that we only want the outcome of such exercise to be placed before this Court before passing further orders as to its implementation."
27 Subsequently, I.A. No. 334/2014 came up for hearing before the Hon'ble Supreme Court on 14.7.2016 and the following order came to be passed : "Since, it is reported that identical prayer is subject matter of consideration in Civil Writ Petition No. 696 of 2010 titled H.P. Judicial Service Officers Association v. State of Himachal Pradesh and others, before the High Court of Himachal Pradesh, we are of the view that the parties should be relegated to work out their remedy in the said writ petition and await the outcome of the said writ petition.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 25Adjourned.
The applicant is permitted to move the High Court for .
expeditious hearing of the writ petition."
28 Even though, with the passing of the aforesaid order, the application i.e. I.A. No. 334/2014 was deemed to have been disposed of, however it continued to be reflected as pending in the records and taking advantage of this fact, the petitioners therein made another attempt for listing of the application, as is evident from the order passed by the Hon'ble Supreme Court on 24.3.2017. Thereafter, I.A. No. 334/2014 came up for consideration on 25.4.2017 and the following order was passed: "Having heard learned counsel for the parties, we request the High Court to submit the report through the counsel by second week of July, 2017. Needless to emphasis, the report of the Committee shall be in consonance with the principal judgments i.e. All India Judges' Association and others vs. Union of India and Others (2002) 4 SCC 247 and All India Judges' Association and Others vs. Union of India and Others (2010) 15 SCC 170. We are sure that the High Court shall analyze the judgments and submit the report which will be in accord with both the judgments. When ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 26 we say in accord with the judgments, the High Court will appreciate both the verdicts in letter and spirit."
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29 Subsequently, I.A.No. 334/2014 came up for consideration on 9.10.2017 and on the said date the direct recruits put in their appearance and the Hon'ble Supreme Court passed the following order: "It is submitted by Mr. P.S. Patwalia, learned senior counsel for the respondent that he would like to file an application on behalf of the direct recruits whose seniority position is affected. As this juncture, Mr. Dushyant Dave and Mr. Basava Prabhu S. Patil, learned senior counsel appearing for the applicant promotees submit that the view taken by the High Court is in consonance with the decision in All India Judges' Association and ors. vs. Union of India and others (2002) 4 SCC 247 and (2010) 15 SCC 170.
Mr. Raju Ramachandran, learned senior counsel appearing for the High Court shall file a comprehensive affidavit with regard to the decision taken by the High Court, and also indicate whether the decision taken by the High Court is in consonance with the judgment rendered by this Court in All India Judges' Association's case (supra).
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 27As we understand, the issue is whether the seniority position, as claimed by the parties, has been fully .
covered by the earlier decision rendered by this Court and any thing else remains to be done. Additionally, it will be open to the parties to assist us if there is any order passed by this Court in connection with this case or any other case.
Let the matter be listed on 6.11.2017 at 2.00 P.M. A copy of the report submitted by the High Court to the Registry of this Court be handed over to the learned counsel for the parties."
30 However, when I.A. No. 334/2014 subsequently came up for consideration before the Hon'ble Supreme Court on 13.3.2018, the same was formally disposed of by observing as under:
"The issue raised in I.A. No. 334 of 2014 in Writ Petition (Civil) No. 1022/1989, as it appears to us from the materials on record, relates to the disputes inter se between the individuals/groups, which , in our considered view, would not be appropriate for determination by this Court in an I.A. (No.334 of 2014) filed in W.P.(C) No. 1022/1989 (All India Judges Association & Ors. Vs. Union of India & Ors.). We, therefore, decline to entertain the I.A. any further ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 28 leaving the parties to have resort to such remedies as may be available to them in law."
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31 It is after passing of the aforesaid order that the petitioners approached this Court by filing these writ petitions, which as a matter of fact were filed on 4.9.2018 and 22.9.2018 respectively.
32 As noticed above, the representation preferred by the H.P. Judicial Officers Association including its some of individual members and the petitioners herein came to be rejected by the Full Court vide its meeting dated 22.8.2005 and such rejection was duly communicated to the Association vide letter dated 24.8.2005. However, none of the members of the Association individually or through the Association has ever assailed such rejection till date and it was in March 2009 that for the first time, the Association approached the Hon'ble Supreme Court by filing I.A. Nos.
234/2009 and 235/2009, which were rejected vide order dated 26.3.2009. However, what prevented the petitioners from assailing the order rejecting their representation for a period of nearly four years in these I.As. is not at all ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 29 forthcoming. Surprisingly, even in October, 2009, when the Association filed WP (C) No. 532/2009 again the decision of .
the Full court was not challenged. Admittedly, in the meanwhile, respondents No. 3 to 6 had already come to be appointed through direct recruits on 18.5.2004, 17.12.2006, 27.9.2007 and 23.10.2009 respectively.
33In the sequence of events, as narrated above, it is clearly established on record that at the time when the petitioners sought to agitate the matter, it was only a stale or dead issue and it was more than settled that the issue of limitation or delay and laches has been considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 3034 The petitioners are guilty since they have acquiesced in accepting the appointment of the private .
respondents from the date and day they came to be appointed and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions. The petitioners lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions.
Secondly, because of acquiescence and waiver on the part of the petitioners, no relief can be granted to them as this would prejudicially affect rights of the private respondents.
35 In such circumstances, there is no question why the Court should come to the rescue of such persons, when they themselves are guilty of acquiescence and waiver.
36 It is more than settled that there has to be an element of repose and a stale claim, more particularly to the one related to seniority and promotion, cannot be resuscitated.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 3137 It is also beyond any cavil or doubt that the remedy under article 226 of the Constitution of India is a .
discretionary one. For sufficient or cogent reasons, the court may, in a given case, refuse to exercise its jurisdiction; delay and laches being one of them. While considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof.
38 As regards the service matters, more particularly, pertaining to seniority and promotion, the delay is to be strictly construed or else it would amount to unsettling the settled matters after a lapse of time. A person aggrieved by an order of promotion should approach the Court at least within six months or at the most a year of such promotion. It has been further held that it is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 of the Constitution ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 32 of India in the case of persons 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 matters.
39 Normally, delay itself may not defeat the party's claim or relief unless the position of the opposite party has been irretrievably altered or would be put to undue hardship.
Delay is not absolute impediment to exercise judicial discretion and rendering of substantial justice and such matters lie in the exclusive discretion of the Court, which discretion obviously has to be exercised fairly and justly. The underlying principle behind dismissal of petition on the ground of delay and laches is to discourage agitation of stale claim and has to be construed from the perspective of the opposite party being prejudiced especially when the delay effects others' ripened rights, which may have attained finality. Each case will have to be decided on its own facts and merits. There may be cases where the demand of justice is so compelling that the Court would be inclined to interfere ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 33 in spite of delay. Ultimately, as observed above, it would be a matter within the discretion of the Court.
.
40 Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime.
41 It is settled law that fencesitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (Refer: Shiba Shankar Mohapatra and others vs. State of Orissa and others, (2010) 12 SCC 471).
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 3442 At this stage it shall be profitable to refer to the following observations of the Hon'ble Supreme Court in Vijay .
Kumar Kaul and others vs. Union of India and others, (2012) 7 SCC 610 as under:
"[23] It is necessary to keep in mind that claim for the seniority is to be put forth within a reasonable period of time. In this context, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State of Tamil Nadu, 1974 AIR(SC) 2271, wherein a twoJudge Bench has held thus: r "It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the courts to put forward stale claims and try to unsettle matters."
[24] In Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr., 2006 AIR(SC) 1581 this Court had held thus that delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 35 taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even .
where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports, 1970 AIR(SC) 769.
Of course, the discretion has to be exercised judicially and reasonably.
[25] In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors., 2009 AIR(SC) 571 this Court has opined that one of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.
[26] From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy.
[27] The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 36 significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the .
path of extinction with the passage of time."
43 A stale claim of getting promotional benefits normally should not be entertained and reference in this regard can conveniently be made to the judgment rendered by the Hon'ble Supreme Court in State of Uttaranchal and another vs. Shiv Charan Singh Bhandari and others, (2013) 12 SCC 179, wherein after considering the entire law on the subject, it was held as under:
[27] We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion.::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 37
28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles .
and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court."
44 Seniority is a civil right, which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of senioritycummerit or meritcum seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority is unsettled, it may generate bitterness, resentment, hostility among the Government servants and even the enthusiasm to do quality work may be lost.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 3845 Learned counsel for the petitioners would argue that determination of seniority dispute is continuing wrong .
and therefore, relief should be granted even if there is a long delay in seeking remedy, however I find no force in the said submission.
46 As observed above, the claim of the petitioners along with H.P. Judicial Officers' Association came to be rejected by the Full Court vide its meeting on 22.8.2005 and such rejection was duly communicated to the association and the said rejection has not been assailed till date.
47 The legal position is well articulated by the Hon'ble Supreme Court in its decision in Union of India and others vs. Tarsem Singh, (2008) 8 SCC 648, wherein it was held as under:
7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 39 based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with .
reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
48 In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 40
(ii)any change of position that has occurred on the defendant's part.
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49 Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it;
or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy afterwards to be asserted. In such cases, lapse of time and delay are most material. Upon these considerations rests the doctrine of laches." (Refer U.P. Jal Nigam vs. Jaswant Singh, (2006) 11 SCC 464 para 12).
50 It is by now settled principle of jurisprudence that a right not exercised for a long time is nonexistent.
Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 41 doctrine of acquiescence and nonsuited the litigants who approached the Court belatedly without any justifiable .
explanation for bringing the action after unreasonable delay.
Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".
51 If a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.
52 Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 42 a long period the aggrieved party does not approach the machinery provided under the law for redressal of his .
grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. These principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is nonexistent. (Refer: Prabhakar vs. Joint Director, Sericulture Department and another, 2015 (15) SCC 1) 53 The Constitution Bench of the Hon'ble Supreme Court in Malcom Lawrence Cecil D'Souza vs. Union of India and others, AIR 1975 SC 1269 held that "although security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 43 aspects, it should at least be possible, to ensure that matters like one's position in the seniority list after having been .
settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
54 Thus, what appears to be more settled is that once seniority has been fixed and it remains in existence for a reasonable time, any challenge to the same should not be entertained.
55 Earlier to that, a constitution bench of Hon'ble Supreme Court in Rabindra Nath vs. Union of India, AIR 1970 SC 470 held as under:
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 44"In so far as the attack was based on the 1952 rules, it must fail on the ground that this petition .
under Art. 32 of the Constitution had been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Even though Art. 32 is a guaranteed right it does not follow that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inodinate delay. It would be unjust to deprive the respondents of the rights which had r accrued to them. Every person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years."
56 Similar reiteration of law is to be found in the very recent judgments of the Hon'ble Supreme Court in Union of India and others vs. Chaman Rana, (2018) 5 SCC 798 and 2019(3) SCALE 527, Union of India and others vs. C. Girija and others , wherein the Hon'ble Supreme Court reiterated the observations made in P.S. Sadasivaswamy and Shiv Charan Singh Bhandari's cases and observed that remaining oblivious to the factum of delay and laches ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 45 and granting relief is contrary to all settled principles and would bring a tsunami in the service resulting in .
administrative chaos.
57 This Court sees no reason to interfere with stale or dead claim presented in these writ petitions relating to seniority at this distance of time in view of the observations made in P.S. Sadasivaswamy's case, wherein the Hon'ble Supreme Court has guided that the matter of promotion and seniority should be agitated without delay and at least within six months or one year from the date of accrual of cause of action. The approach of the petitioners is found inordinately belated.
58 Thus, it would be prudent for this Court not to interfere and create multiple complications of seniority etc. and upset the settled rights of others in the cadre. The petitions as against the rights of the private respondents suffers from inordinate delay and unexplained laches.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 46.
59 This however not to suggest that law declared by the Hon'ble Supreme Court is not binding on this Court, but the manner in which the petitioners are now seeking its implementation/enforcement cannot be countenanced and the same now has to be enforced without disturbing seniority position of the direct recruits.
60 At this stage, in order to be fair to the petitioners, it has been vehemently argued on their behalf that in view of the report submitted by this Court pursuant to the directions passed by the Hon'ble Supreme Court in I.A. No. 334/2014, from time to time, more particularly directions passed on 28.4.2016 and 25.4.2017, the High Court itself has in its report assigned and acknowledged correct seniority position of the petitioners over and above private respondents and, therefore, the writ petitions cannot be held to be barred by delay and laches.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 4761 Even this contention is equally without merit. No doubt, in terms of order passed by the Hon'ble Supreme .
Court on 28.4.2016 in I.A.No.334/2014 in WP (C) No. 1022/1989, an administrative committee of two Hon'ble Judges had been constituted, but it was made clear by the said committee in its report that it had not decided claims and counter claims of the parties and had rather submitted its findings strictly in accordance with the directions of the Hon'ble Supreme Court.
62 As a matter of fact, perusal of the report, Annexure P12, itself suggests that entire exercise has been done in terms of the directions contained in the judgment rendered by the Hon'ble Supreme Court in All India Judges' Association and others vs. Union of India and others, however, while dealing with representations, that had been filed by the direct recruits, all legal questions were left open to be decided by the Hon'ble Supreme Court in the pending litigation. The committee in its report (Annexure P12) while referring the contentions raised by the direct recruits supported by various ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 48 legal pronouncements had categorically observed that the present exercise was limited to the extent of preparation of .
the report drawing seniority for three different categories of promotees and direct recruits and to carry out the said exercise w.e.f. 31.3.2003.
63 It is also a fact that the report submitted by the committee came to be accepted by the Full Court and was subsequently submitted before the Hon'ble Supreme Court, who vide its order dated 9.10.2017 directed the High Court to file comprehensive affidavit with regard to the decision taken by the High Court, and also indicate whether the decision taken by the High Court was in consonance with the judgment rendered by the Hon'ble Supreme Court in All India Judges' Association's case (supra).
64 In the affidavit of compliance filed before the Hon'ble Supreme Court, it was categorically stated that the committee had carried out exercise in terms of the judgment passed by the Hon'ble Supreme Court in All India Judges' Association's case and at the same time, it was also pointed ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 49 out that the direct recruits (respondents herein) had relied upon judgment rendered by the five Hon'ble Judges Bench of .
the Hon'ble Supreme Court in Direct Recruits ClassII Engineering Officers Association vs. State of Maharashtra 1990 (2) SCC 715 and other judgments also, however, the said judgments were not considered by the Committee as it was beyond its competence and purview to go into such questions especially in light of the directions of the Hon'ble Supreme Court. Therefore, exercise carried out by the committee consisting of two Hon'ble Judges, as approved by the Full Court, does not in any way carry the case of the petitioners any forward.
65 Admittedly, I.A. No. 334/2014, which as a matter of fact had virtually been dismissed on 14.7.2016 by permitting the applicants therein to move this High Court for expeditious hearing of CWP No. 696 of 2010 titled H.P. Judicial Service Officers Association v. State of Himachal Pradesh and others, even through it came to be formally ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 50 disposed of by the Hon'ble Supreme Court vide its order dated 13.3.2018 (supra).
.
66 That apart, even the interim orders of the Hon'ble Supreme Court will not enthuse a fresh lease of life or furnish a fresh cause of action to the petitioners to agitate a claim that was otherwise clearly a dead and stale claim.
67Moreover, it is more than settled that no litigant can derive any benefit of mere pendency of a case in a court of law as interim order always merges into final order that has been passed in the case and the interim order stands nullified automatically.
68 In view of the aforesaid observations, I have no hesitation to conclude that the petitioners have only put a stale claim and the writ petitions are clearly barred by delay and laches and allowing the same would in fact mean unsettling the seniority position as has been in existence for the last more than 16 years.
::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 5169 Lastly, it would be noticed that the petitioners have deliberately and wilfully clubbed together multiple .
causes of action even though they really do not exist.
70 It would be evident from the reliefs claimed in these petitions as reproduced in para 2 (supra) that these petitions are directed against assignment of seniority of respondents No. 3 and 4 alone, who came to be appointed as direct recruits in the cadre of District and Sessions Judge on 18.5.2004 and 17.12.2006 and no relief whatsoever has been claimed against respondents No. 5 and 6, who were appointed on 27.9.2007 and 23.10.2009 respectively.
71 The inclusion of these respondents is obviously for an oblique purpose in order to claim that the petitions have been filed within reasonable time and the same is, therefore, not barred by the principles of delay and laches.
72 The cause of action,if any, arose to the petitioners on the dates when respondents No. 3 and 4 came to be appointed i.e. on 18.5.2004 and 17.12.2006 and having ::: Downloaded on - 01/05/2019 22:00:27 :::HCHP 52 failed to assail their appointments and assignment of the seniority within time frame as provided by by the Hon'ble .
Supreme Court in P.S. Sadasivaswamy's case, they are not entitled to any relief(s) as claimed.
73 Since the writ petitions are being disposed of on the ground of delay and laches, acquiescence and also the clubbing of various causes of action, other preliminary objections raised by respondents N. 3 to 6 and merits of the case need not to be gone into. The writ petitions are accordingly dismissed leaving the parties to bear their own costs. Pending application(s), if any, also stands dismissed.
1.5.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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