Delhi High Court
Shri Suraj Bhan & Another vs Shri Rajinder Pal Singh Lamba & Others on 18 April, 2001
Equivalent citations: 91(2001)DLT702
Author: B.N. Chaturvedi
Bench: B.N. Chaturvedi
ORDER B.N. Chaturvedi, J.
1. Instant Letters Patent Appeals No.30/1999, 31/99 & 64/99 arise out of a common judgment dated 9th of November, 1998 of the learned Single Judge in Civil Writs No.1939 of 1988 and 1152/1988 filed by Shri Rajinderpal Singh Lamba & Shri V.K. Garg respectively allowing the same in the following terms:
"13. It is hereby declared that the petitioners are deemed to have been promoted as UDCs w.e.f. 1.1.1976 and that shall be the basis on which their claims for future promotions in the ladder of service would be considered by respondents 2 & 3. To the extent indicated above, the writ petition is allowed."
"14. The respondents 2 & 3 shall give the benefit of this judgment to the other similarly situated persons like the petitioners, who had become graduates before 1.1.1976."
"15. There shall be no order as to costs."
2. In LPA No.30/99 the appellants S/Shri Suraj Bhan and Radha Krishan assail the impugned judgment and seek reversal thereof. In LPA Nos.31/99 and 64/99 respective appellants namely, S/Shri Rajinderpal Singh Lamba and Shri V.K. Garg seek modification of the impugned judgment and grant of reliefs to the following effect:
LPA No.31/99".......................to modify the order dated 09.11.1998 passed by the Ld. Single Judge in CWP No.1939/1988 to the extent that the appellant will also be entitled to the arrears of salary and other monetary benefits as admissible on account of his deemed promotion to the cadre of Upper Division Clerk w.e.f. 01.01.1976 and also to the cadres of Higher Promotion in the ladder to the post of Assistant and above to which he may be found promoted on account of the re-fixation of his seniority in the cadre of U.D.Cs, Assistants and the like."LPA No.64/99
"............................to modify the order dated 9.11.1998 passed by the learned Single Judge in the Civil Writ Petition No.1152/1988 and to order that the appellant will also be entitled to the arrears of salary and other monetary benefits on account of his deemed promotion to the cadre of Upper Division Clerk w.e.f. 1.1.1976 and also to the cadres of Assistants and above, to which he may be found promoted on account of the re-fixation of his seniority in the cadre of UDCs, Assistants, etc."
Since all the three LPAs involve inter-related issues, the same are being dealt with the disposed of by a composite order. As the decision of LPAs No.31/99 and 64/99 is wholly dependent on the final outcome of LPA No.30/99, the same is being taken up first.
LPA No.30 OF 1999
3. S/Shri Rajinderpal Singh Lamba and V.K. Garg were appointed as Lower Division Clerks on 1.10.1972 and 24.11.1969 respectively, consequent upon their appointments in that capacity in the Ministerial Establishment of the District & Sessions Judge, Delhi. Shri Rajinderpal Singh Lamba graduated from Delhi University in 1975 while Shri V.K. Garg did his graduation from the same very University in the year 1974. According to them, after their graduation and two years' experience in the office work, they became entitled to be considered for promotion from the cadre of Lower Division Clerks to the higher grade of Upper Division Clerks (for short,"LDCs and UDCs") on the due dates when the permanent vacancies in the cadre of UDCs occurred in the year 1975 or thereabout, by virtue of rule of rotation as contained in Rule VI, Chapter 18-A of the Punjab High Court Rules & Orders (Vol.1) framed under Section 35(3) of the Punjab Courts Act (referred to as 'Rule/Rules' hereafter). This, however, did not happen.
4. S/Shri Rajinderpal Singh Lamba and V.K. Garg submitted their respective applications dated 24.12.1986 & 2.1.1987 to the District & Sessions Judge, Delhi (Respondent No.4) seeking their promotion to the posts of UDC under the said Rule from the due dates when, according to them, permanent vacancies in the cadre of UDCs occurred in the year 1975. Their applications, however, did not find favor with the District & Sessions Judge, Delhi, respondent no.4, and the same were rejected on different dates in January, 1987. Thereupon, they made service appeals to the High Court of Delhi, Respondent No.3, which were entrusted to D.P. Wadhwa, J. (as his Lordship then was) on the Administrative Side for hearing and report. Two other graduate LDCs had also filed similar appeals which were also entrusted to D.P. Wadhwa, J. Non-graduate LDCs too made their representations against the said service appeals. D.P. Wadhwa, J. after hearing the graduate and non-graduate LDCs and persuing the relevant records, made his report dated 2.3.1988. The conclusion part of the report reads thus:-
"I would, therefore, allow these appeals and would hold that the appellants are entitled to be considered for promotion to the grade of UDC by selection on merit out of graduates as provided in Rule VI referred above. This would, however, not mean reversion of any officer presently working as UDC whether graduate or non-graduate. The promotion of the appellants, if any, will, therefore, be prospective only."
5. Aggrieved by the aforesaid report and denial of promotion and other service benefits with retrospective effect, as sought by them, S/Shri Rajinderpal Singh Lamba & V.K. Garg approached this Court on Judicial Side with separate writ petitions No.1939/88 and 1152/88, which were decided by means of impugned judgment.
6. Consequent upon report dated 2.3.1988 of D.P. Wadhwa, J. S/Shri V.K. Garg and Rajinderpal Singh Lamba were promoted as UDCs with effect from 1.4.1988 and 30.1.1992 respectively. According to the Delhi High Court and District & Sessions Judge, Delhi, Respondents 3 & 4, the said promotions were made prospectively in pursuance of the report dated 2.3.1988 of D.P. Wadhwa, J. In their counter affidavits to the writ petitions before the Learned Single Judge, respondents 3 & 4 pleaded that the Graduate LDCs including S/Shri Rajinderpal Singh Lamba and V.K. Garg had agitated their right of promotion at a very belated stage and promotions to them with retrospective effect would have resulted in reversion of number of non-graduate employees who had been promoted as UDCs during the period 1974 to 1988. Now, in compliance with the directions issued by way of the impugned judgment, the respondent no.1 and Shri V.K. Garg have been promoted with retrospective effect from 1976 vide order dated 29.4.1999. of the respondent no.4 and their seniority Along with that of others similarly situated graduate LDCs, is in the process of being refixed. The exercise relating to such refixation of seniority spans over a period of about 30 years, as disclosed in the counter affidavit of respondent no.4, filed in the course of contempt proceedings.
7. We have heard the learned counsels for the respective parties and perused the record.
8. Manifold pleas were advanced on behalf of appellants to question the correctness of the impugned judgment. Firstly, it was contended that though Shri Rajinderpal Singh Lamba, Respondent No.1 and Shri V.K. Garg had graduated in the years 1975 & 1974 respectively, the representations on their behalf for promotion to the post of UDC, with retrospective effect, were made in the year 1986 & 1987 only, after lapse of a period of about 11/12 years. Filing of writ petitions, it was pleaded, after such an inordinate delay rendered them disentitled to seek promotion with retrospective effect as their claim was barred by laches. Secondly, it was argued that Section 35(3) of the Punjab Courts Act, 1918 under which, Rule VI, was framed stood repealed by the Government of India (Adaptation of India Laws) order 1937 and as a result the said rule ceased to exist and thus that rule was no longer available to the Graduate LDCs to seek promotion there under by applying the rule of rotation. Thirdly, it was convassed that as the rule of rotation was not acted upon and the promotions were being made on the basis of length of service only since very beginning, rota rule has broken down and consequently the promotions have necessarily to be made on the basis of length of service. It was contended that the learned Single Judge erred in directing deemed promotion of S/Shri Rajinderpal Singh Lamba and V.K. Garg from 1976 as it does not lie within the jurisdiction of the court to issue such a direction and at best only consideration of their candidature for promotion in accordance with the rules, subject to vacancy position, could have been ordered. In any case, it is asserted, the benefit of the impugned judgment could not have been directed to be extended to the other similarly situated persons like S/Shri Rajinderpal Singh Lamba and V.K. Garg, who had become graduates before 1.1.1976, as no person, other than S/Shri Rajinderpal Singh Lamba and V.K. Garg, ever approached the court and the court thus could not come to the aid of such persons, who did not seek to agitate their rights and acquiesced their prevailing position. Fourthly, it was submitted that even if the rule of rotation as contained in Rule VI is held applicable, the same is ultra-virus being violative of Articles 14 & 16 of the Constitution of India. It was added that qualification for LDC and UDC is the same and the graduate and non-graduate LDCs and UDCs perform the same duties and thus there is no reasons to carve out certain vacancies to be filled-up by graduates only. Lastly, it was urged that the present appeal is barred by res judicata.
9. Taking a cue from the judgment in question, countering the plea of latches, raised by the appellants, it was submitted on behalf of Shri Rajinderpal Singh Lamba, respondent no.1 that as the promotions under the rules constitute conditions of recruitment, the same are mandatory and respondent no.4 was thus obliged to consider his case for promotion in accordance with the rules and he could not be made to suffer due to the wrong committed by the employer (Respondent No.4). It was pleaded that the respondent had to exhaust his remedies available under the rules before approaching the court and that cause of action accrued to him only after his service appeal had been decided by D.P. Wadhwa, J. on 2nd March, 1988. Shri N.L. Bareja, learned counsel for the respondent no.1 pointed out that the plea of latches has appropriately been dealt with by the learned Single Judge in the impugned judgment and moreover, he contended, the plea of delay or latches was never raised before the learned Single Judge on behalf of the appellants and only respondents 3 & 4 had agitated this point and after the decision of the learned Single Judge on this aspect, the same having not been challenged by the said respondents, the same is not available to be raised now by the appellants. Regarding appellant's plea pertaining to inapplicability of Rule VI, it was asserted on behalf of the respondents 3 & 4 that the same continued to be applicable notwithstanding repeal of Section 35(3) of the Punjab Courts Act whereunder the same had been framed. On behalf of respondent no.1 it was argued that the appellants having earlier omitted to raise the plea against the applicability of the rule in question, it is not open to them now to come up for the first time with a plea in that respect in the course of this appeal. It was further submitted that the Government can provide for higher qualification in the rules for granting promotion and a classification based on higher educational qualification is a reasonable one and cannot be termed as violative of Articles 14 & 16 of the Constitution of India. Defending the impugned judgment granting deemed promotion, with retrospective effect, it was maintained on behalf of respondent no.1 that the court was quite competent to do so and the impugned decision is, therefore, not liable to be interfered with on this score. As the CWP.1939/88 & CWP No.1152/88, were heard and decided together by a common judgment, and as the appeal has been filed against the decision in CWP NO.1939/88 only and not against the one in CWP No.1152/88, present appeal is pleaded to be barred by res judicata.
10. In the context of plea relating to delay and laches, raised by the appellants, one may first take note of the basis on which the same was not accepted by the learned Single Judge. A decision of Madras High Court in M. Viswanathan Vs. Government of Tamil Nadu and Others, 1989 LAB IC 1567 appears to have pursuaded the learned Single Judge to negative the said plea. The relevant part of the decision, as extracted in the impugned judgment, may be reproduced for better understanding of the reasoning:
"Promotion or a legitimate right to which an employee is entitled ought to have been given to the employee even without asking. The qualification and other particulars of an employee are entered in his Service Register. Whenever vacancies arise, it is the duty of the authorities to consider the persons who are qualified for those posts and who are eligible for promotion. Merely because relevant entries regarding the petitioner's qualification have been made on 26.1.1977, it does not mean that the petitioner has lost his right of promotion. The Service Register is maintained in the School itself and the School is inspected by the authorities concerned. Therefore, it cannot be said that the entries in the Service Register had escaped the notice of the authorities. Therefore, when the petitioner's statement that the authorities were fully aware of the petitioner to be promoted, cannot be brushed aside as unreasonable or untenable. It is for the authorities to take steps for considering the qualified persons for the suitable post as and when vacancies arise. It is not for employee to apply for the same. So the contention raised on behalf of the respondents that the petitioner had kept silent for nearly 11 years is not acceptable and the same is not a ground to reject the justifiable request to promote to the post for which he had been qualified when it had fallen vacant."
11. The learned Single Judge concluded that Rule VI being part of statutory rules, non-action on the part of respondent no.4 in compliance therewith, was in violation of the said Rule and non-consideration of respondent no.1 and Shri V.K. Garg for promotion to the post of UDC in 1975/1976 amounted to affecting their service conditions and came within the mischief of Articles 14 & 16 of the Constitution of India. Following the decision in M. Vishwanathan's Case (supra) the learned Single Judge held the view that in a case as the present one, it was not obligatory on the part of the respondent no.1 or shri V.K. Garg to have challenged the aforesaid non-action on the part of respondent no.4 by making any representation or petition to the court against their non-promotion on the due dates when the vacancies in the post of UDCs had, according to them, occured and in that sense of the matter he appears to favor the view that time factor is immaterial to agitate the issue.
12. To stress the point that respondent no.4 was obliged to accord automatic consideration for promotion to the respondent no.1 and Shri V.K. Garg in accordance with Rule VI and that they cannot be made to suffer due to non-action on the part of respondent no.4, by omitting to consider them for promotion, as the promotion under that rule constituted conditions of recruitment and thus mandatory, apart from M. Vishwanathan (supra), decisions in Joginder Singh Vs. State of Punjab & Others; SLR 1981 (2) Punjab & Haryana page 792; Syed Khalil Rizivi & Ors. Vs. Union of India & Ors., JT 1992 (Suppl) SC 169; Keshav Chandra Joshi & Ors. Vs. Union of India & Ors., 1992 Suppl(1) SCC 272; A.K. Bhatnagar & Ors. Vs. Union of India & Ors., ; B.S. Minhas Vs. India Statistical Institute & Ors., 1984(1) SLJ page 217 (SC) and Sukhdev Singh & Ors. Vs. Bhagat Ram Sardar Singh, Raghunath Bansi & Anr. etc., were referred to.
13. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. There is no gainsaying that the rule of recruitment/ promotion, wherever they exist, are meant to be scrupulously adhered to by the authorities concerned and Rule VI is no exception to it. In the context of plea of delay or laches, however, it is not the adherence or otherwise to the said Rule VI, which is relevant, it is rather the effect of non-observance of that rule which needs to be examined. Admittedly, the respondent no.4 in pursuance of rule of rotation, as embodied in Rule VI, did not consider the respondent no.1 and Shri V.K. Garg for promotion to the post of UDC on the due dates when the vacancies in that post arose. The respondent no.1 and Shri V.K. Garg, both, in spite of their names not being considered for the promotion, kept quiet until 1986/1987 and did not agitate the issue by making representations to the respondent no.4. It was only in the year 1986 & 1987 that the respondent no.1 and Shri V.K. Garg respectively made their representations to the respondent no.4, which were, however, rejected in January, 1987. Immediately, thereafter, the respondent no.1 and Shri V.K. Garg made their respective service appeals to the Delhi High Court (Respondent No.3) on 10.2.1987 which were eventually decided on 2.3.1988. Shri V.K. Garg approached the Delhi High Court on Judicial Side with a writ petition under Article 226 of the Constitution of India in May, 1988 and Shri Rajinderpal Singh Lamba in February, 1989. Thus, from 1975 to 1986/1987, neither of them had agitated against non-consideration of their names for promotion to the post of UDC before they decided to make their respective representations to the respondent no.4 and a period of 11/12 years was allowed to lapse during which a number of promotions of graduate and non-graduate LDCs to the posts of UDC had taken place. No doubt, in terms of Rule VI it was enjoined upon respondent no.4, in pursuance of rota rule, to have considered their names for promotion to the post of UDC as and when the vacancies arose but he omitted to act in compliance with that rule and continued to promote the graduate and non-graduate LDCs on the basis of their length of service and fitness only. The cause of action accrued to the respondent no.1, Shri V.K. Garg and other similarly situated graduate LDCs on the dates vacancies in the posts of UDC occured, to represent against denial of consideration of their names for promotion to them in compliance with Rule VI. The respondent no.1 and Shri V.K. Garg, however, failed to act to ventilate their grievance. They seek to justify their inaction in this respect by pleading ignorance regarding existence of rule of rotation (Rule VI), prior to 1986 and 1987, when they made their respective representations to the respondent no.4. Omission on their part to agitate against their names being not considered for promotion in compliance with rule of rotation lacks a valid explanation as ignorance of the same can hardly be accepted as a justifiable ground for total inaction on their part for a long period of 11/12 years.
14. Shri N.L. Bareja, learned counsel for respondent no.1 referred to several decisions in support of his plea that the claim of respondent no.1 cannot be thrown out simply on the ground of delay or laches, particularly when the plea in this respect has already been set at rest by the learned Single Judge and the respondents 3 & 4, who had raised the plea have not appealed against the impugned judgment and further when the appellants had never taken the plea of delay or laches before the learned Single Judge. The decisions cited in this connection include Smt. Bhuri Bai (Dead) through LRs and Others Vs. State of Madhya Pradesh, 1987 (Suppl) SCC 690; State Bank of Bikaner & Jaipur Vs. Hari Har Nath Bhargave, ; Sua Lal Yadav Vs. State of Rajasthan & Ors., ; Madras Port Trust Vs. Himanshu International, ; Ramchandera Shankar Deodhar & Ors. Vs. The State of Maharashstra & Ors., ; G.P. Doval & Ors. Vs. Chief Secretary, Govt. of U.P. & Ors., ; Arun Kumar Chatterjee Vs. South-Eastern Railway & Ors. 1985(1) SLR SC 500; P.B. Rai Vs. Union of India, ; P.B. Nair Vs. Union of India & Ors., 1992 LAB IC 40; and J.M.J.S. Alexander Vs. Administration of Goa; 1982(2) SLJ page 132.
15. Reference to the above referred individual cases does not appear necessary. In Ramchandera Shankar Deodhar & Ors.(supra), a Constitution Bench of the Hon'ble Supreme Court dealt with the issue of delay or laches and summed it up in the following terms:
"The rule which says that a Court may not inquire into belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay the court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case.
It may also be noted that the principle on which the court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. It may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be pursuaded to refuse relief solely on the jejune ground of laches, delay or the like. and Foll."
16. Clearly, delay and laches per se offer no justification to decline the relief. However, in a case like present one, where a good number of graduate and non-graduate LDCs have been promoted during the period from 1975 to 1988 and their seniority, more or less, stands crystalised on the basis of length of their services, the inordinate delay in challenging the non- action on the part of respondent no.4, can hardly be overlooked. The respondent no.1 and Shri V.K. Garg have sought their promotion to the post of UDC with retrospective effect from 1976. In the event of such a relief being granted, as a consequence, the issue of their seniority is bound to crop up, which may result into displacement of a sizable number of already promoted LDCs from their seniority positions.
17. Founded on Apex Court decisions in B.S. Bajwa & Anr. Vs. State of Punjab & Others ; Union of India & Another Vs. S.S. Kothial & Others ; Gian Singh Mann Vs, High Court of Punjab & Haryana & Another ; G.C. Gupta & Others Vs. N. K. Pandey & Others, and Yashbir Singh & Others Vr. Union of India & Ors., AIR 1988 SC 662. Shri Sandeep Sethi, learned counsel for the appellants contended that after lapse of a period of more than 11/12 years, an old matter of promotion and seniority cannot be allowed to be raked up to the detriment of appellants and many others. In B.S. Bajwa (supra) where the issue of seniority was raised by the appellants after the lapse of more than a decade, when promotions had also taken place in the intervening period, it was held:
"The question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition."
Same very proposition of law emerges out of the other above referred cases.
18. In Amrit Lal Berri Vs. Collector of Central Excise, New Delhi & Others, 1975(1) SLR (SE) 153, referred to by Shri Sandeep Sethi, learned counsel for the appellants, even in the matter of enforcement of fundamental rights, where equitable rights of innocent third persons intervened in between, the element of delay and acquiscence were held not to be overlooked while considering a claim in that respect.
19. A point was raised on behalf of respondent no.1 that since the plea of delay and laches was not raised earlier on behalf of appellants, before the learned Single Judge, it is now not open to them to come up with such a plea for the first time in the course of hearing of the present Letters Patent Appeal. Support to this plea is sought to be raised by referring to decisions in Shanbaggakannu Vs. Muthu Bhattar and another, ; The Punjab Produce and Trading Co. Ltd. Vs. The Commissioner of Income-Tax, West Bengal II, Calcutta, ; Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumari Sharma and others, ; Income-tax Officer Vs. Ch. Atchaiah, ; Bhanwar Lal Vs. T.K.A. Abdul karim through N.K. Mohd. Mustafa, ; The Kurukshetra University and others Vs. Rural College of Education, Kaithal, ; Sawan Ram Vs. Gobinda Ram and Anr., ; Chandgi Ram and another Vs. Moonga and others; AIR 1971 Punjab & Haryana 375; Harbans Lal and others Vs. State of Punjab through, Secretary, Local Govt. Chandigarh and others, AIR 1971 Punjab & Haryana 379; Ramchandra Kesheo Uttarwar and Others Vs. Commr. of Nagpur Division, Nagpur and others, ; 1. Narinderjit Singh (In C.A. No.1192 of 1967; 2. Ranjit Singh and others (In C.A. No.1193 of 1967) Vs. The State of U.P. and others, ; Raghunathe Jew at Bhapur Vs. State of Orissa & Ors., 1998 IX AD (S.C.) 304; Jai Bhagwan Sharma & Another Vs. Matu Ram Bhola Ram and others ; Sarju Prasad Saha Vs. The State of U.P. and others, ; Vimal Chandra Grover Vs. Bank of India, ; Modern Insulators Ltd. Vs. Oriental Insurance Co.Ltd., ; BSI Ltd. and Another Vs. Gift Holdings Pvt. Ltd. and Another; ; M/s. Eklera China Clay Works and Others Vs. M/s. Ashwin & Co. and Others, ; Workmen of Jessop & Co. and another Vs. Jessop & Co. and another, 1974 LAB I.C. 332; Om Prakash Gupta Vs. Union of India & Anr., ; Bir Singh Chauhan Vs. State of Haryana & Anr., ; G.L. Bajaj, S.D.O. Vs. The State of Punjab and others, 1982(1) SLR Punjab & Haryana 275; Smt. Naseem Bano Vs. State of U.P. and others, and Sockieting Tea Co.(Private) Ltd. Vs. Under Secretary to the Govt. of Assam and others, ;
20. The plea of delay or laches was raised before the learned Single Judge on behalf of respondents 3 & 4 only. Admittedly, no such plea was ever raised from the side of the appellants. The learned Single Judge declined to accept the plea of delay and laches raised by respondents 3 & 4. No appeal against the impugned judgment has been filed on behalf of respondents 3 & 4 challenging that part of the impugned judgment. In spite of the fact that respondents 3 & 4 have not appealed against the impugned judgment rejecting their plea pertaining to delay or laches, it was open to them under Order 41 Rule 22 CPC to have questioned the said part of impugned judgment provided they had taken cross-objection in that respect. Such cross-objection was required to be filed within one moth from the date of service of notice on them or their pleader or within such further time as the court could have allowed. The respondents 3 & 4 have, however, opted not to file any such cross-objection. As far as appellants are concerned, the plea of delay or laches raised on their behalf in the course of hearing does not constitute grounds of appeal. However, keeping in view the fact that the plea regarding delay or laches had earlier been raised by co-respondents 3 & 4 and dealt with by the learned Single Judge in the impugned judgment and the same constitutes a vital point against belated and stale claim being granted, the plea on this count had been allowed to be raised in view of Order 41 Rule 2 CPC., omission to incorporate this plea in the grounds of appeal notwithstanding. The Court may grant the appellants to raise a point to which the other side cannot legitimately raise an objection on the ground of surprise (See (1911) 38 Cal 629(637)(P.C.). In fact, the plea of delay or laches as such is not a new one and the only difference is that the same which had initially been raised by respondents 3 & 4, before the learned Single Judge, has now been sought to be agitated by the appellants/ co-respondents.
21. No dobt, non-action on the part of respondent no.4 by omitting to consider for promotion to the post of UDC from amongst the graduate LDCs, by applying the rule of rotation was in violation of Rule VI affecting the conditions of service of the respondent no.1 and Shri V.K. Garg, we are, however, unable to subscribe to the view taken by the learned Single Judge that the inordinate delay in filing the petitions, was liable to be overlooked.
22. As held in B.S. Bajwa and other cases referred to above, since the rule of promotion with retrospective effect, involves the issue of seniority as well, which cannot be reopened after lapse of a reasonable period to disturb the settled position, the writ petition is liable to be rejected on the ground of delay and laches alone and the impugned judgment thus cannot be sustained.
23. Proceeding to the next plea of inapplicability of Rule VI, a reference may be made to Section 35(3) of the Punjab Courts Act, 1918, (for short 'the Act') as the nucleus of argument advanced by Shri Sandeep Sethi, learned counsel for the appellants is that since this provision under which the Punjab High Court Rules & Orders, 1918 including Rule VI were framed having been repealed by the Govt. of India (Adaptation of Indian Laws), Order 1937, Rule VI does not survive such repeal.
24. This plea was raised before the learned Single Judge on behalf of none of the respondents, including the appellants. However, as the entire controversy between the parties revolves around Rule VI, the plea relating to applicability or otherwise thereof must receive due consideration.
25. There is n o denial of the fact that Section 35(3) of the Punjab Courts Act, 1918 stood repealed by the Govt. of India (Adaptation of Indian Laws) Order 1937 (for short "Order of 1937'). It was, however, asserted on behalf of the respondents that notwithstanding repeal of Section 35(3) of the Act, the Rules including Rule VI framed there under continued to be operative as the same were saved by Article 10 of the Order of 1937, till other provisions in this behalf were made by the competent authority. It was stressed that judicial pronouncements, involving application of various rules, including Rule VI, in a number of cases make it evident that the applicability of the rules, after repeal of Section 35(3) of the Act, has never been held in doubt. In this connection, the cases which were referred to include Chander Bhan Vs. Hoti Lal, JT 1991 SC 163; Hoti Lal Gupta Vs. Chander Bhan II and Ors., 1982 LAB. I.C. 591, Delhi; Sukhlal Tandon Vs. Distt. & Sessions Judge, Kangra & Ors., 1974 LAB. I.C. 78; S.K. Baharal Vs. Administrator, 1993 Rajdhani Law Reporter (Note) 40; Dev Singh & Ors. Vs. The Registrar, Punjab & Haryana High Court & Ors., ; Gyan Prakash Vs. Union of India & Ors., 1998 LAB. I.C. Sc 391; The Punjab Process Serving Establishment Union, Distt. Court, Amritsar Vs. The State of Punjab & Ors., 1997(4) SLR 445; Shri Amar Singh Vs. The Chief Justice, Punjab and Haryana High Court, Chandigarh and Ors.: ; and Shakti Sarup Puri and Ors. Vs. Union of India and Ors. (decided by Central Administratative Tribunal, New Delhi on 17.7.1986 in OA No.T-1050/1985).
26. Shri Sandeep Sethi, learned counsel for the appellants, however, contended and rightly so, that in none of the aforesaid cases, the applicability as such of the rules was in issue.
27. A specific reference to a Full Bench decision of the Punjab & Haryana High Court in Amar Singh's case (supra) was made on behalf of respondent no.1, to counter the argument of Shri Sethi. In Amar Singh's case (supra) it was held:
"Before embarking on the task of examining the problem from various angles, it would be fruitful to analyses the rules applicable to the appointment of Superintendent to the District & Sessions Judge in their historical perspective. Before the enactment of the Government of India Act, 1935, the appointment of the Superintendents to the District & Sessions Judges was governed by Section 35 of the Punjab Courts Act, 1918, and the rules were framed by the High Court under sub-section (3) of Section 35. These rules are contained in Chapter 18-A Volume 1, High Court Rules and Orders. After the coming into force of the Government of India Act. 1935, under clause (b) of sub section (1) of Section 241 of this Act, the power to make appointments to the civil services and posts in connection with the affairs of a province vested in the Governor or his nominee and under sub section (2) the Governor could make rules for regulating the conditions of service of a person serving in connection with the affairs of a province. Though Section 35 of the Punjab Courts Act, 1918, was repealed by the Government of India (Adaptation of Indian Laws) Order, 1937, but the rules contained in Chapter 18-A, Volume 1, High Court Rules & Orders, were saved by Article 10 of this Order till other provision in this behalf was made by the competent authority."
28. Countering the plea on behalf of appellants that notwithstanding repeal of Section 35(3) of the Act, by virtue of Article 10 of the Order of 1937, Rule VI continued to be in operation, Shri Sandeep Sethi appearing for the appellants, pointed out that Article 10 of the Order of 1937 is irrelevant in that it only provided for exercise of powers by a person or authority as applicable prior to the commencement of Part-III of the Government of India, Act, 1935. Article 10 of the Order of 1937 reads to the following effect:
"Save as provided by this Order all powers which under any law in force in British India, or in any part of British India, were immediately before the commencement of Part III of the Government of India Act, 1935, vested in, or exercisable by, any person or authority shall continue to be so vested or exercisable until other provision is made by some legislature or authority empowered to regulate the matter in question.
29. A plain reading of Article 10 of Order of 1937 indicates that only the powers, vested in or exercisable by, any person or authority, under any law in force in British India, immediately before the commencement of Part-III of the Government of India Act, 1935, for which no provision was made in that Order, were saved and continued to be vested or exercisable by the same person or authority, until other provision was made by some legislature or authority. Thus, it is difficult to accept the argument of learned counsel for respondent no.1, based on Full Bench decision of the Punjab & Haryana High Court in Amar Singh's case (supra) that Chapter 18-A Vol.1 (including Rule VI) of the Punjab High Court Rules & Orders was saved by Article 10 of the Order of 1937. It is actually Article 9 of the Order of 1937, which is in the nature of saving clause in relation to Chapter 18-A (Vol.1) of the Punjab High Court Rules & Orders. It reads as under:
"The provisions of this Order which adapt or modify Indian laws so as to alter the manner in which, the authority by which, or the law under, or in accordance with which, any powers are exercisable, shall not render invalid any notification, order, commitment, attachment, byelaw, rule or regulation duly made, or issued, or anything duly done, before the commencement, of this Order; and any such notification, order, commitment, attachment, byelaw, rule, regulation or thing may be revoked, varied or undone in the like manner, to the like extent and in the like circumstances as if it had been made, issued or done after the commencement of this Order by the competent authority and under and in accordance with the provisions then applicable to such a case."
Thus, in spite of repeal of Section 35(3) of the Act, by virtue of Article 9 of the Order of 1937, Rule VI continued to be in operation.
30. Apart from Article 9 of the Order of 1937, even otherwise, Section 24 read with Section 6 of the General Clauses Act, 1897 also save the rules framed under the repealed Section 35(3) of the Act. In the present case though it was a partial repeal of certain sections, including Section 35 of the Act, even in the case of such a partial repeal Section 6 applies (see 1967 SC 1541)(1543). Under the common law when rule or bye-law is made under an Act or a Section thereof, the repeal of that Act or Section abrogates the Rule or byelaw, unless it is preserved by the repealing Act by means of a saving clause or otherwise. Section 24 deals with the continuation of Orders, Schemes, Rules, Forms or Byelaws, made or issued under the repealed Act (See and Section 24 enacts a Rule different from the said common law Rule. The subject-matter of Section 24 is the effect of repeal and re-enactment of an Act on statutory instruments issued under the repealed Act. The main object of the Section is to preserve the continuity of such instrument, unless a different intention appears. Thus, notwithstanding repeal of Section 35(3) of the Act, the Rules framed there under continued to be in force.
31. The Punjab Courts Act, 1918 was extended to the Union Territory of Delhi vide Government of India (Home) Notification No.189/38 dated 30.5.1939. Shri Sandeep Sethi, learned counsel for the appellants pointed out that since the Punjab Courts Act, 1918 was extended to the Union Territory of Delhi after repeal of Section 35(3) of the Act and the Notification did not make the rules framed under the repealed Section applicable to Delhi, the rules could not be held to have extended application to the Union Territory of Delhi. We, however, find it difficult to accept this contention.
32. Per Maxwell, "On the Interpretation of Statutes", 10th edn.pp 50-51:
"Rules made under a statute must be treated for all purposes of construction or obligation exactly if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation."
33. Thus, since the Act included the rules a well, as framed under the repealed Section, with the extension of the Act to the Union Territory of Delhi, by means of Notification dated 30.5.1939 the rules framed there under also stood extended to Delhi.
34. Shri Sandeep Sethi, learned counsel for the appellants also pointed out that Section 35(3) of the Punjab Courts Act was repealed in 1937 in view of enactment of Govt. of India Act, 1935 and by virtue of sub-sections (i)(ii) & (iii) of Section 241 thereof the power to make appointments in Civil & Sessions Court in the States including Delhi was vested in Governor General in Council and in pursuance thereto, by a Notification dated 17.2.1941 the Governor General in Council directed that the appointment to the posts in Civil Courts at Delhi shall be made by the District & Sessions Judge, and further that the Judges of the High Court at Lahore would be authorised to make, subject to the previous approval of the Central Government, rules prescribing the Conditions of Service of such persons and posts. With the coming into force of the Constitution of India, it was pleaded, Article 309 came to hold the field and in exercise of powers there under and in supersession of earlier Notification dated 17.2.1941 the Central Government by a Notification dated 28.10.1953 made the same provision. Mr. Sethi felt that it the rules framed under Section 35(3) were to hold the field, there was no need of issuing the aforesaid two Notifications. No doubt, the Order of 1937 after repealing Section 35(3) of the Punjab Courts Act made provisions vesting the rule making power in the Governor General in Council and the Governor General in Council, in exercise of such power issued the said Notification dated 17.2.1941, the rules as contained in Chapter 18-A (Vol.1) of the Punjab High Court Rules & Orders were never replaced or varied by the Judges of the High Court at Lahore and the same very rules continued to remain in force. Even after the issuance of Notification dated 28.10.1953 by the President of India under proviso to Article 309 of the Constitution of India, the old rules framed under Section 35(3) of the Act continued to be in force and no fresh rules were framed to replace the old ones. The aforesaid two Notifications simply made provisions to vest rules making power in the authorities mentioned therein but since such authorities did not proceed to make new rules in place of the old ones, the rules framed earlier under Section 35(3) of the Act continued to remain in force by virtue of Article 9 of the Order of 1937. The said two Notifications were issued in order to provide for rule making authority in place of one under the repealed Section 35(3) of the Act. Thus, issuance of these Notification cannot be taken to mean that the rules framed earlier under Section 35(3) of the Act, had actually ceased to exist.
35. On behalf of respondents 3 & 4 a reference was made to Section 7 of the Delhi High Court Act to contend that the rules in question stood extended to the Union Territory of Delhi by virtue of that Section. Such an argument, however, does not help them. Section 7 of the Delhi High Court Act provides for the applicability to the Delhi High Court of "Practice & Procedure" for the Punjab & Harayana High Court. It read as under:
"7. Practice and Procedure in the High Court of Delhi-- Subject to the provisions of the Act, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of Delhi and accordingly the High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Punjab and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction:
Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with the necessary modifications in relation to practice and procedure in the High Court of Delhi as if made by that High Court."
36. "Practice & Procedure" are said to relate to the legal rules directing the manner of bringing the parties into court, and the method of the court after they are brought in, in hearing, dealing with, and disposing of, matters in disputes between them (see in Words & Phrases Vol.33 at page 88). In Tata Oil Mills Vs. Hansa Pharmacy, 2nd 1979(2) Delhi 236 procedure was held to signify the mode in which the successive steps in litigation are taken. Thus,, "Practice & Procedure" as occurring in Section 7 of the Delhi High Court Act appear to speak of the Rules on Practice & Procedure applicable to the Delhi High Court on its judicial side only. Therefore, the argument that the rules in question became applicable to the Union Territory of Delhi by Virtue of Section 7 of the Delhi High Court Act is misconceived and difficult to accept. However, in spite of the plea of the respondents being negatived, as already observed, the rules in question including Rule VI, are held to be applicable to Delhi until other rules varying or replacing the same were framed by the appropriate authority.
37. Adverting to the scope and application of Rule VI, for the benefit of reference, Rule VI may be extracted hereinunder:
"Promotion--(1) Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades, provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted; for which purpose tests may be imposed. This rule does not apply to such posts as that of stenographer; for which special qualifications are needed; but preference should be given to officers with such qualifications who are already working in the lower grades;
Provided that permanent vacancies in the 75-5-125 grade shall be filled by the District & Sessions Judges in the following rotation:--
(i) By selection on merit out of graduates who have atheist two years' experience in the work of the office, if there is no suitable graduate who fulfills this condition an 'outsider' graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District & Sessions Judge.
(ii) & (iii) By normal promotion in the office, i.e., the appointment of the next senior man whether graduate or non-graduate subject to his fitness:
Provided further that the rotation may be modified in very exceptional cases when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi-permanently in the post concerned for an appreciable period. What is an appreciable period will depend on the circumstances of each case. After such a modification, the rotation should be restored as soon as possible.
(2) In making promotions preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity. Efficiency without honesty is not to be regarded as constituting a claim to promotion."
38. Rule VI has been in operation without any amendment therein until 19th of March, 1999 when fresh rules of promotion were framed by the Punjab & Haryana High Court substituting Rule VI vide Punjab Government, Gaz., March 19, 1999 (PHGN, 1920, SAKA). In the present case, it is unnecessary to take note of such fresh rules by extracting the same here. Rule VI as extracted hereinabove, is quite clear and unambiguous in its scope and application. Sub-rule (1) of Rule VI embodies a normal rule of promotion to the higher grade of the ministerial establishment on the basis of seniority-cum-fitness. First proviso to this sub rule, however, subjects it to a rider to the effect that the permanent vacancies in the grade of 75-5-125 shall be filled in the following rotation:-
(i) By selection on merit out of graduates who have at least two years experience in the work of the office, or by direct recruitment of an 'outsider' graduate;
(ii) & (iii) by normal promotion in the office, i.e. the appointment of the next senior man whether graduate or non-graduate subject to his fitness.
39. Thus, in making appointments/ promotion to the aforesaid higher grade of the ministerial establishment, rule of rotation is made applicable by virtue of which the first vacancy is required to be filled-up by selection on merit out of graduate LDCs, who have at least two years' experience in the work of the office or in case of no suitable graduate LDC fulfillling the said condition being available, by appointment of an 'outsider' graduate, who normally resides within the jurisdiction of the District & Sessions Judge; the second and third vacancies are to be filled by normal promotion of the next senior man, whether graduate or non-graduate, subject to his fitness. A further proviso to sub-rule (i) of Rule VI provides for modification of the said rule of rotation when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi-permanently in the post concerned for an appreciable period but the power under this proviso is exercisable in very exceptional cases only. This proviso in fact, deals with the appointment of 'outsider' graduates only. Needless to point out that by virtue of application of rule of rotation in promotion/ appointment from the lower grade of LDCs to the higher grade of UDCs, or 'outsider' graduates, the ones selected on merit, come to occupy senior positions to those promoted against the other two vacancies on the basis of seniority-cum-fitness.
40. It was pointed out on behalf of respondents 3 & 4 that no promotions by applying rule of rotation based on selection on merits out of graduates, who have at least two years' experience in the work of the office, or by direct appointment of 'outsider' graduates have ever been made prior to the filing of the writ petitions by respondent no.1 and Shri V.K. Garg and all the promotions from the cadre of LDCs to that of UDCs have been made on the basis of length of service only i.e. seniority-cum-fitness. No reason is set-forth for omission to make promotions by applying rule of rotation. Whatever may be the reason, the fact is that no promotions by selection on merit out of graduate LDCs having at least two years experience' in the office work or by direct recruitment had taken place prior to filing of the writ petitions in question and thus, the seniority of the graduate or non-graduate LDCs promoted to the posts of UDC from time to time could not have been fixed by applying the said rule of rotation.
41. Though Rule VI does not, in express terms, provide for 'quota' in relation to graduate LDCs or 'outsider' graduates, to be promoted or appointed to the posts of UDC, it is implicit in the rule of rotation. In terms of first proviso to Rule Vi(1) the promotions or appointments to the posts of UDC, from amongst eligible graduate LDCs or 'outsider' graduates, as the case may be, on one hand and that of graduate and non-graduate LDCs, on the other, were to be made in the ratio of 1:2 and their seniority was to be fixed as per rota rule of seniority. Prior to the filing of the Writ Petitions No.1939/88 and 1152/88, there has, however, been a complete departure from quota rule. In a situation were rota rule of seniority is interlinked with quota rule and the latter is completely or unreasonably departed from and thus breaks down, rota rule of seniority ceases to have its application.
42. In a decision in A. Janardhana Vs. Union of India & Ors., it was held:
"As quota rule was directly inter-related with the seniority rule, and once the quota rule gave way, the seniority rule became wholly otiose and ineffective. It is equally well-recognised that where the quota rule is linked with the seniority rule, if the first breaks down or is illegally not adhered to giving effect to the second would be unjust, inequitous and improper.
In yet another decision in P.S. Mahal Vs. Union of India, it was observed:
" the rotational rule of seniority is inextricably linked with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority."
43. Same view finds projection in Shri O.P. Singla Vs. Union of India, and Shri G.S. Lamba & Ors. Vs. Union of India & Ors., .
44. As quota rota rule contained in Rule VI was not adhered to, prior to filing of the said writ petitions and all the promotions from the cadre of LDCs to that of UDCs were made on seniority-cum-fitness basis only and the quota rota rule has thus broken down, it is not open to apply rotational rule of seniority with retrospective effect. In the given situation where quota rota rule had broken down, the same could not be revived and applied retrospectively to extend the benefit of rotational rule of seniority as contained in Rule VI to graduate LDCs like respondent no.1. Rotational rule of seniority being not available for application with retrospective effect, the seniority of all graduate and non-graduate LDCs promoted to the posts of UDC is to be fixed on the basis of length of service only.
45. On the issue of deemed promotion with retrospective effect, the impugned judgment proceeds on the assumption that wherever the claim of an employee to be considered for promotion in terms of statutory rules is ignored by the employer, such employee is entitled to deemed promotion retrospectively. Shri Sandeep Sethi appearing for the appellants, however, on the basis of Supreme Court decisions in State of Madhya Pradesh Vs. Shri Srikant Chaphekar, 1992(5) SLR 635; State of Mysore & Another Vs. P.N. Nanjundiah and another, 1969 SLR 346; State of Mysore Vs. C.R. Seshadri & Ors., 1974(1) S.L.R. 407 questioned the correctness of this part of the impugned judgment contending that issuing a direction for actual promotion does not fall within the realm of writ jurisdiction of the court and at best the direction can be only for consideration of a candidate for promotion in accordance with relevant rules and subject to availability of vacancy; particularly, for a selection post, as in the present case. In P.N. Nanjudiah (supra) where the High Court issued a Writ of Mandamus directing the Government to promote aggrieved official from retrospective date, the Hon'ble Supreme Court did not approve of it holding:
"It had been pointed out by this Court in the State of Mysore Vs. Syed Mahmood & Others that in matters of this description the High Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the first respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him....."
46. In C.R. Seshadri's case (supra) also a similar view was taken. This was a case where the relief seeking official had retired during the pendency of the appeal by the State before the Hon'ble Supreme Court against the decision of the High Court directing to give notional promotion, to the official concerned with effect from a particular date, it was laid down:
"the power to promote an officer belongs to the Executive and the judicial power may control or review government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles....."
47. Shri N.L. Bareja, learned counsel for respondent no.1 relied upon the decisions reported in The Distt. Registrar Palghat & Ors. Vs. M.B. Koyyakutti & Ors., ; The Comptroller & Auditor General of India, Gian Prakash, New Delhi and Anr. Vs. K.S. Jagannathan and Anr., ; Badrinath Vs. Government of Tamil Nadu & Ors., JT 2000 (Suppl.1) SC 346; Dr. (Mrs.) Sandhya Jain Vs. Dr. Subhash Garg and Anr., ; State of Bihar Vs. Dr. Braj Kumar Mishra and Ors., AIR SC 106; C.O. Arumugam and Ors. Vs. State of Tamil Nadu and Ors., 1991 Supp (2) SCC 199; Maharashtra Vikri Kar Karamchari Sanghathan Vs. State of Maharashtra & Anr., AIR 2000 SC 662; Ram Sevak Prasad Vs. State of U.P. & Ors., ; Ashok V. David Vs. U.O.I. & Ors., ; Virander Kumar Singh Vs. The State of U.P. & Ors., ; Gurcharan Dass Vaid Vs. State of Punjab & Ors., 1972 SLR (4) SC; R.K. Singh Vs. State of U.P. and Ors., ; Jagbir Singh Vs. State of Haryana & Ors., 1996-III AD, SC 671; Shri Ashok V. Vaid Vs. David Shri M.G. Halappanavar Union of India & Ors., 1996 IV AD SC 615; Union of India etc., etc. Vs. K.V. Jankiraman, etc. etc., ; R.C. Jain Vs. Haryana State Electricity Board Panchkular, 1995(2) SLR 651, for support to his contention that in appropriate cases the court was not without power to issue writ of mandamus directing deemed promotion from a particular date. While ratio of decisions in some of the cases so referred are distinguishable on facts, the other cases involved the question of promotion on seniority-cum-fitness basis. In none of these cases the promotion was to be given by selection on merit as in the present case. In C.R. Seshadri's case (supra) the Hon'ble Supreme Court while disapproving issuance of direction by the High Court for notional promotion with retrospective effect, observed :
"Basically, it is in Government's discretionary powers, fairly exercised, to promote a Government servant. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand if seniority-cum-merit is the rule, promotion is problematical."
48. Admittedly, in the case on hand promotion to respondent no.1 to the post of UDC is being sought with retrospective effect by virtue of rule of rotation by selection on merit. It is not on seniority-cum-merit basis. The promotion to the post of UDC being by selection on merit the court cannot say that the respondent no.1 would have been for certain, promoted to the post of UDC, had he been considered for promotion to that post with effect from 1.1.1976 as directed by the learned Single Judge. It being a selection post, in the process of selection, the possibility of some other graduate LDC scoring over respondent no.1 in the matter of promotion to the post of UDC, by virtue of rule of rotation, cannot be ruled out. This apart, yet another aspect which needed to be taken into account while directing promotion with retrospective effect from a particular date is the availability of vacancy in the post of UDC on that date. No promotion could be directed to be given to respondent No.1 from 1.1.1976 unless the court had the necessary data regarding vacancy position in the post of UDCs. Both these aspects appear to have escaped due consideration on the part of the learned Single Judge while directing promotion of respondent no.1 with retrospective effect from 1.1.1976. It is, therefore, difficult, to agree with the view taken by the learned Single Judge directing deemed promotion of respondent no.1 with effect from 1.1.1976. For the same reason, we are further unable to endorse the directions extending the benefit of deemed promotion to the other similarly situated persons like the respondent no.1. Consequently, the impugned judgment in these respects cannot be sustained.
49. Constitutional validity of Rule VI is sought to be questioned on behalf of appellants on the grounds that the qualification for LDCs and UDCs being the same and the graduate and non-graduate LDC, and UDCs performing the same duties, there is no reason to carve out certain vacancies to be filled-up by graduates only. The rule of rotation in favor of graduate LDCs as contemplated by Rule VI, it is contended, militates against the constitutional guarantee of equality before law and equality of opportunity as enshrined in Articles 14 & 16 of the Constitution of India.
50. Shri Sandeep Sethi, appearing for the appellants, sought to maintain that Rule VI, being violative of Articles 14 & 16 of the Constitution, is liable to be struck down and in the absence of any valid rule of rotation, the seniority of the incumbents of the posts of UDC is to be fixed on the basis of length of service only. To lend support to his contention, a decision of the Apex Court in M.B.Joshi & Others Versus Ram Saran Gupta & Others, , was referred to.
51. Apart from a bare plea to the effect that Rule VI is violative of Articles 14 & 16 of the Constitution, the grounds on which constitutionality thereof is sought to be tested, have not been spelt out in the grounds of appeal. As a matter of fact, no such plea was ever taken or raised by any of the respondents including the appellants while contesting the writ petitions before the learned Single Judge. It is now for the first time in the course of this appeal that the validity of Rule VI is sought to be subjected to a challenge without detailing the grounds of such challenge. The plea being an altogether new one cannot be allowed to be raised for the first time in the course of present LPA. Moreso, any adjudication on the constitutional validity of Rule VI, in favor or against, is unlikely to affect the final outcome of the appeal, in the ultimate analysis. We accordingly decline to take note of this plea.
52. Lastly, the maintainability of LPA No.30/99 is sought to be questioned on the plea of res judicata. It may be noticed that CWPs No.1939/88 & No.1152/88 filed by Shri Rajinderpal Singh Lamba, respondent no.1 and Shri V.K. Garg, respectively were decided by a common judgment which is being assailed in the present appeal. While the appellants have sought to challenge the impugned judgment by impleading Shri Rajinderpal Singh Lamba only as respondent no.1, as far as it relates to civil writ petition No.1939/88, no appeal is stated to have been filed against the same in respect of CWP No.1152/88. It was, therefore, argued on behalf of respondent no.1 that the impugned judgment, in so far as it pertains to Writ Petition No.1152/88, no appeal having been filed against the same, has become final and consequently, the present appeal against the decision in CWP No.1939/88 is barred by res judicata. Reference was made to Premier Tyres Ltd. Vs. Kerala State Road Transport Corporation. : Ram Prakash Vs. Smt. Charan Kaur & Anr., and Sir Sobha Singh & Sons Vs. Behari Lal Beni pd., 1996 RLR 277.
53. Even if this plea is taken to be available to respondent no.1, in all the aforesaid cases, it may be noticed that both the suits which were consolidated and disposed of by means of a common judgment happened to be between the same parties. As laid down by the Hon'ble Supreme Court in Sheodan Singh Vs. Daryao Kunwar, , to constitute a matter res judicata, the following conditions must be satisfied, namely;
"(I) the matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (II) the former suit must have been a suit between the same parties or between parties under whom they or any of them claim; (III) the parties must have litigated under the same title in the former suit; (IV) the Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and (V) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit."
54. In the present case, writ petitions No.1939/88 and 1152/88 were filed by Shri Rajinderpal Singh Lamba and Shri V.K. Garg separately. Of course, the respondents in both the writ petitions happened to be the same. Clearly, both the writ petitions cannot be held to have been between the same parties, and thus, the impugned judgment as far as it relates to writ petition No.1152/88 cannot be pleaded to have been between the same parties, and therefore, the impugned judgment as far as it relates to writ petition no.1152/88, which is pleaded to have become final by virtue of no appeal having been filed against the same, cannot operate as res judicata to bar the present appeal. The plea of res judicata raised on behalf of respondent no.1 is thus held to be without substance and hence rejected.
55. Before concluding, it may be noticed that out of 62 respondents in Writ Petition No.1939/88 and 44 in Writ Petition No.1152/88, only two of them have filed the present appeal and challenge to the impugned judgment is confined to the extent it pertains to petition No.1939/88. No appeal has been preferred against the impugned judgment in relation to the writ petition No.1152/88, filed by Shri V.K. Garg. Shri V.K. Garg has not been imp leaded as a party to the appeal. Both the Writ Petitions proceeded on common grounds and the reliefs granted therein are identical. Apart from granting deemed promotion to the respective petitioners with effect from 1.1.1976 and directing that such deemed promotion shall be the basis on which their claims for future promotions in the ladder of service would be considered, the impugned judgment proceeds to make a further direction that the benefit of the judgment shall be extended to the other similarly situated persons, like Shri Rajinderpal Singh Lamba and Shri V.K. Garg, who have become graduates before 1.1.1676. Thus, even if the present appeal is allowed and as a consequence Writ Petition No.1939/88 is dismissed, Shri Rajinderpal Singh Lamba, respondent no.1, will still be entitled to claim all the benefits granted to him by way of impugned judgment, being covered in the category of 'similarly situated persons', like Shri V.K. Garg, petitioner of petition No.1152/88. Further, co-respondents of the appellants in the two writ petitions have not filed any appeal or cross-objections against the impugned judgment implying acceptance or acquiescence on their part in respect thereto. Barring respondents 2 to 4 other co-respondents are not imp leaded as parties to the appeal. In such a situation can the impugned judgment be reversed or varied in their favor? Unless, the judgment in question is reversed in favor of respondents 2 to 4 also, they would continue to be bound to give effect to the directions issued therein, even if this appeal is decided in favor of the appellants. This gives rise to a piquant situation where the controversy relating to deemed promotion with retrospective effect and consequent seniority to Shri v.K. Garg and other similarly situated graduate LDCs including Shri Rajinderpal Singh Lamba, respondent no.1, who graduated before 1.1.1976, is threatened to persist and the atmosphere of uncertainty in the matter of promotions and inter se seniority between such graduate LDCs on one hand and graduate and non-graduate LDCs, who have already been promoted to the posts of UDC and have been holding such posts for a number of years, on the other, would seem to continue to engulf the whole of the ministerial establishment of respondent no.4. Equitable balancing of legitimate claims of the concerned employees, within the space circumscribed by law, thus, constitutes paramount consideration to foreclose further litigation between aggrieved sections of the employees and to clear the clouds of uncertainty in the matter of promotions and inter se seniority.
56. There is no easy solution to the problem. But there has to be a way out. Strictly speaking, the provisions of the Code of Civil Procedure may not be applicable in relation to the Writ Petitions and Letters Patent Appeals nevertheless being based on sound principles for advancing cause of justice the same may be of some guiding help to get over the problem. With this view in mind it is relevant to take note of Rules 4 & 33 of Order XLT of the Code of Civil Procedure, which read as under:
"4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all-- Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favor of all the plaintiffs or defendants, as the case may be.
"33. Power of Court of appeal-- The Appellate Court shall have powers to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favor of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:
provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order].
57. Rule 4 gives the Court ample power to make the appropriate order needed in the interest of justice by reversing or varying the decree in favor of all the plaintiffs or defendants, as the case may be. [See, Virdhachalam Pillai V. Chaldean Syrian Bank Ltd., Trichur and another, ]. The rule provides that where a decree proceeds upon a ground common to all the plaintiffs or defendants, anyone of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the Appellate Court can reverse or vary the decree in favor of all the plaintiffs or the defendants, as the case may be [See, Lal Chand (dead) by L.Rs. and others, V. Radha Kishan, ]. It aims at preventing contradictory decisions on the subject matter in the same suit. The general rule is that, on an appeal by one of several plaintiffs or defendants, the Appellate Court can reverse or vary the decree only in favor of the party appealing. Rules 4 & 33 however, enact exceptions to this general rule. Of course, being in the nature of enabling provisions, the same can be invoked to grant relief to non-appealing parties, only in exceptional cases. Though Rule 4 speaks of more plaintiffs or more defendants than one 'in a suit', it would appear to have application even in cases where several suits stand consolidated and decided together by means of a common judgment. (See, Amarsangji Indrasangji v. Desai Umed, AIR 1925 Bom 290).
58. In the present case though no order consolidating the two writ petitions, was passed in express terms, in effect it was actually so, since both were taken up together for simultaneous hearing and decision by a common judgment. Thus on the analogy of the principles underlying Rule 4, in spite of respondents 2 to 4 having failed to file their cross objections and omission on the part of other co-respondents in the two writ petitions to file an appeal against the impugned judgment or opting out to join as co-appellants, the impugned judgment can be reversed in favor of all the respondents in the writ petitions, apart from the present appellants.
59. Rule 33 embraces a wider scope and applicability as compared to Rule 4. The object of the same being to do complete justice between the parties. It is, however, to be applied with some degree of circumspection. To quote from a decision of the apex court in Nirmala Bala Ghose and another V. Balai Chand Ghose and another, :
"This rule is expressed in terms which are wide, but it has to be applied with discretion and to cases where interference in favor of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the court to adjust the rights of the parties".
60. In yet another decision in Harihar Prasad Singh and others v. Balmiki Prasad Singh and others, the apex court observed:
"The appellate court can exercise its power under this rule in favor of parties who were not imp leaded as parties to the appeal."
61. Rule 33 deals with appeals against a decree, which in fact is amalgamation of decrees more than one. In the present case, though both the writ petitions were decided by means of impugned judgment, in effect it is a combine of separate decisions in regard to individual writ petitions. However, the appeal is restricted to part of decision relating to writ petition No.1939/88 only. To grant the relief to the appellants, mere reversal of the impugned judgment, and dismissal of the Writ Petition No.1939/88, is likely to be of no avail, unless the impugned judgment in relation to Writ Petition No.1152/88 is also upset by interfering therewith. It is worth recalling that the present appellants, in addition to respondents 2 to 4 and some other persons, who are not parties to the present appeal, are co-respondents in Writ Petition No.1152/88 as well. If the impugned judgment in regard to that writ petition is not interfered with and thus left intact, it would not be possible to do complete justice to the appellants as the decision in respect of Writ Petition No.1152/88 will continue to bind them. In the circumstances, a decision in favor of the appellants in respect of Writ Petition No.1939/88, will be simply an exercise in futility. It is manifest from the preceding part of the judgment that the decision under challenge is difficult to uphold as it does not reflect correct appraisal of legal position for its sustenance. The impugned judgment in regard to both the writ petitions cannot be characterised as one which ought in law to have been passed. Rule 33 vests the Appellate Court with power to deal with the case in any way that may seem equitable to all the parties concerned. The part of impugned judgment in relation to writ petition No.1939/88 appealed against is so inseperably connected with the portion of judgment concerning it petition No.1152/88 not appealed against that justice cannot be done unless the latter portion is also interfered with. It is thus rendered imperative to invoke Rule 33 to exercise the discretion of reversing that part as well of the impugned judgment which relates to writ petition No.1152/88. The exercise so warranted is however again not free from difficulty.
62. In Harihar Prasad Singh and others v. Balmiki Prasad Singh and others, the Hon'ble Court laid down:
"Under this rule, the appellate court had no power to interfere to the prejudice of a person who was party to the suit but who was not imp leaded in the appeal."
63. No doubt, Shri V.K. Garg, petitioner of writ petition No.1152/88 has not been formally imp leaded as a party to the appeal, he had full opportunity to defend the impugned judgment in his favor. Like respondent No.1, Shri V.K. Garg has also field an individual appeal (No.64/99) seeking modification of the impugned judgment to the extent indicated at the outset of this judgment. Present appeal along with individual appeals No.31/99 & 64/99, filed by respondent No.1 and Shri V.K. Garg were taken up and heard simultaneously. Shri N.L. Bareja, advocate represented respondent No.1 and Shri V.K. Garg as well in the course of such hearing. Since the success of their appeals No.31/99 & 64/99, filed by Shri Rajinderpal Singh Lamba, respondent No.1 & Shri V.K. Garg wholly depended on impugned judgment being upheld, the submissions made by Shri N.L. Bareja, advocate though claimed to be on behalf of respondent no.1, were common in relation to Shri V.K. Garg as well. Thus, though not a formal party to the appeal, it is not a case where the hearing had taken place at the back of Shri V.K. Garg and the impugned judgment concerning his writ petition is sought to be interfered with, without affording him full opportunity of hearing. In the circumstances, it may sound hyper technical to contend that notwithstanding full opportunity of hearing, since Shri V.K. Garg is not formally arrayed as a party to the appeal, the impugned judgment relating to his writ petition No.1152/88 cannot be interfered with even if it amounts to negation of justice to the appellants. To decline to adjust the rights of the parties according to justice, equity and good conscience, merely on account of a technical hitch, would be travesty of justice. As held by the Hon'ble Supreme Court, even if the impugned judgment in favor of Shri V.K. Garg (W.P.No.1152/88) has assumed finality, by virtue of acceptance or acquiescence on the part of the appellants herein, the same can be interfered with to enable the court to adjust the rights of the parties. Like respondent No.1, Shri V.K. Garg, through his counsel has been contesting the appeal from the very beginning while pursuing his appeal (No.64/99). It is not a case where he is sought to be added as a party to the appeal at the stage of final hearing, therefore point of Limitation should pose no problem.
64. Thus, to take the present appeal to a logical conclusion by readjusting the rights of the parties, interference with the impugned judgment, in regard to writ petition No.1152/88 is rendered necessary rather imperative and as a result the impugned judgment is liable to be set aside in its entirety in respect of both the writ petitions in favor of the appellants and their all co-respondents.
65. In the ultimate analysis, the appeal (No.30/99) is allowed; the impugned judgment is set aside and both the writ petitions No.1939/88 & 1152/88 are dismissed with no orders as to costs. It is, however, made clear that notwithstanding dismissal of the said writ petitions, S/Shri Rajinderpal Singh Lamba and V.K. Garg shall be entitled to be considered for promotion to the posts of UDC by applying the rule of rotation prospectively, as stated in the report dated 2.3.1988 of D.P. Wadhwa, J.
L.P. As No.31/99 &, 64/99 With the setting aside of the impugned judgment and dismissal of the writ petitions No.1939/88 & 1152/88, nothing survives and consequently both these appeals fail and are accordingly dismissed.
66. No costs.