Himachal Pradesh High Court
Rajeev Bhardwaj vs State Of H.P & Ors on 11 March, 2020
Author: Sandeep Sharma
Bench: Dharam Chand Chaudhary, Sureshwar Thakur, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
LPA Nos. 33 & 39 of 2019.
Reserved on: 2.1.2020.
Decided on: 11.3.2020.
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1. LPA No. 33 of 2019.
Rajeev Bhardwaj ......Appellant.
Versus
State of H.P & ors. .......Respondents.
2. LPA No. 39 of 2019.
S.C.Kainthla ......Appellant.
Versus
State of H.P & ors. .......Respondents
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant(s): Mr.R.K.Bawa, Sr. Advocate with Mr. Prashant
Sharma, Advocate for appellant in LPA No. 33 of
2019.
Mr. Shrawan Dogra, Sr. Advocate with Mr. Tejasavi
Dogra, Advocate for appellant in LPA No. 39 of
2019.
For the respondents: Mr. Y.S.Thakur, Dy. AG for respondent-State.
Mr. K.D.Sood, Sr. Advocate with Ms. Shalini Thakur,
Advocate for respondent No. 2 in both appeals.
Mr. R.L.Sood, Sr. Advocate with Mr. Arjun Lall,
Advocate for respondents No. 3 & 4 in both appeals.
Mr. B.C.Negi, Sr. Advocate with Mr. Nitin Thakur,
Advocate for respondents No. 5 & 6 in both appeals.
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Justice Dharam Chand Chaudhary, J.
This judgment shall dispose of both the appeals involving identical question of law and facts and having arisen out of common judgment passed by learned Single Judge in CWP No. 2061 of 2018 titled S.C.Kainthla vs. State of H.P. & ors. and ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 2 CWP No. 2292 of 2018 titled Rajeev Bhardwaj vs. State of H.P & ors.
2. In LPA No. 39 of 2019, appellant is S.C.Kainthla .
whereas Rajeev Bhardwaj in LPA No. 33 of 2019. Since learned Single Judge has dismissed the writ petitions filed by the appellants herein (hereinafter referred to as the writ petitioners) on the ground of delay, laches, acquiescence and also being bad on account of clubbing of various causes of action, therefore, they have assailed the impugned judgment though by filing two different appeals, however, on the similar grounds that the same is against law and also facts of the case, hence liable to be quashed and set aside. Respondent No. 2 irrespective of being under legal and constitutional obligation to implement the judgment of the Apex Court in All India Judges' Association & others vs. Union of India & others (2002) 4 SCC 245 (hereinafter referred to as Judges' Association case) has failed to do so.
Learned Single Judge, however, did not appreciate this aspect of the matter in its right perspective. Respondent No. 2 even was under obligation to implement the order passed by the Apex Court in I.A No. 234 of 2009, I.A No. 235 of 2009 and also I.A No. 334 of 2014 filed in WP (C) Nos. 1022 of 1989 & 532 of 2009.
However, the same have also not been implemented to the ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 3 reasons best known to the said respondent. The direction of the Apex Court dated 28.4.2016 in I.A No. 334 of 2014 that respondent No. 2 shall create cadre of Civil Judge (Jr. Divn.) and .
Civil Judge (Sr. Divn.) on and w.e.f. 1.7.1996 with all consequential benefits have also not been complied with as yet.
The direction to follow "post based roster" in appointments to the cadre of District Judges w.e.f. 31.3.2003 is based upon statement of law as propounded in para 49 of the judgment rendered in Judges' Association case.
r It has, therefore, been urged that the non-compliance of direction of the Apex Court for a period of more than 16 years should have not been taken a ground against the petitioners to dismiss the writ petitions which were filed for seeking a direction to respondent No. 2 to implement/comply with the judgment passed therein and also in the interim applications filed from time to time.
3. The direction to the respondent to create a separate cadre of Civil Judges (Sr. Divn.) and Civil Judges (Jr. Divn.) on and w.e.f. 1.7.1996 is neither discussed nor any finding thereon returned by learned Single Judge. Though, no objection was raised by the respondent that the writ petitions were filed beyond the period of limitation, hence without there being any occasion to do so, learned Single Judge has concluded that the claim of ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 4 the petitioners is barred by limitation. The report of the Judges Committee supplied to the writ petitioners during the course of proceedings before learned Single Judge reveals that the claim of .
the petitioners has been accepted by the High Court. Therefore, placing reliance on the orders passed by this Court in CWP No. 61 of 1999 and the rejection of the representation made by the H.P. Judicial Officers' Association and few of the individual Judicial Officers after disposal of the writ petition while rejecting the claims is stated to r be neither legally nor factually sustainable. As per the report of the Judges Committee, out of the cadre strength in the cadre of District/Addl. District Judges, i.e. 31, 16 posts fell in the share of the promotees, 8 in that of direct recruits and 7 for those Judicial Officers entitled to accelerated promotion. The report of the Judges' Committee has not been appreciated in its right perspective by learned Single Judge. The writ petition registered as CWP No. 61 of 1999 and the representation of H.P. Judicial Officers' Association and some individual Judicial Officers made pertains to 1973 Rules, therefore, the order passed in the writ petition and also the rejection of the representations so made is of no consequence nor should have been relied upon. Even, at the time of institution of CWP No. 61 of 1999, none of the respondents i.e. 3 to 6 were ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 5 appointed to the cadre. Learned Single Judge has wrongly treated Rajeev Bhardwaj, one of the writ petitioners appointed to the service in the year 2006, as he was appointed Addl. District .
& Sessions Judge in 2009. This factual error has affected the whole reasoning and conclusion arrived at by learned Single Judge adversely. Learned Single Judge has also failed to appreciate that I.A Nos. 234 & 235 of 2009 were filed in the Hon'ble Apex Court at a stage when respondent No. 2 started process to fill up the posts in excess to the quota meant for direct candidates. At that time, no decision was taken by the High Court to implement the "post based roster" from 2010 instead of 2003.
4. The matter qua applying "post based roster" and not "vacancy based roster" in appointment to the service was taken by the three Judges Committee of this Court in its meeting held on 30.3.2010. The Apex Court had dismissed the applications I.A Nos. 234 & 235 of 2009 vide order dated 26.3.2009 with the observation that violation, if any, of roster system may be challenged in the High Court by way of resorting to the proceedings in accordance with law. When the High Court did not take any decision to implement the directions of the Apex Court, WP (C) No. 532 of 2009 came to be filed in the Apex Court.
::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 6The same, ultimately was withdrawn with liberty reserved to approach this court on the same cause of action. In that Writ Petition, the relief claimed was to stop excess recruitment to the .
cadre from direct category candidates and apply roster to the ongoing recruitment and also recruitment to be made in future.
The order passed by the Apex Court in the interim applications and also WP (C) No. 532 of 2009 has not been appreciated in its right perspective. The judgment passed by the Apex Court in Judges' Association case was brought to the notice of respondent No.2 time and again, however, the said respondent did not implement the same. This aspect of the matter has not been taken into consideration by learned Single Judge. The Judges' Committee Report dated 30.3.2010 admits that respondent No. 2 has followed the "vacancy based roster" and not "post based roster". It was, therefore, recommended by the Committee that on and w.e.f. 31.3.2010, "post based roster" be followed.
Therefore, the direction of the Apex Court on the issue of "post based roster" has not become unenforceable in law or redundant.
On the other hand, judgments passed by the Apex Court are required to be implemented as provided under Articles 141 and 144 of the Constitution of India. The findings that the writ petitioners have brought a stale claim are, therefore, stated to be ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 7 not legally sustainable. It was rather for respondent No. 2 to have implemented the judgment passed by the Apex Court in Judges' Association case and also follow the rules framed on the .
basis of the said judgment in the year 2004. The said respondent, as such, cannot take benefit of its wrong. In view of the report submitted by the Judges' Committee, the principle of pushing down the excess recruits should have been followed. It has not been done and to the contrary, the findings of learned Single Judge r that the writ petitioners are guilty of having acquiesced in accepting the appointments of private respondents are being without any basis and deserves to be quashed and set aside. The cause of action in favour of the petitioners accrued only from the date of their induction into the cadre and not prior to that. The findings that the Judges' Committee in its report in the year 2017 has not settled the claims and counter claims of the parties are stated to be not factually correct. The report according to the petitioners rather was submitted strictly in accordance with the directions of the Apex Court in I.A No. 334 of 2014.
5. It is, on such common grounds raised in both the appeals, the impugned judgment has been sought to be quashed and set aside.
::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 86. Both the appeals after admission on 28.6.2019 were taken up for final hearing and the applications for seeking interim direction were dismissed. The petition for Special Leave .
to Appeal (C) No. 28222 of 2019 was also disposed of by the Apex Court vide order dated 29.11.2019 with the observations that this Court to take up the matter for final hearing as early as possible and preferably within 3 months.
7. We have heard S/Sh. Shrawan Dogra & R.K.Bawa, learned Sr. Advocates assisted by Mr. Tejasavi Dogra and Mr. Prashant Sharma, Advocates and Mr. K.D.Sood, learned Sr. Advocate assisted by Ms. Shalini Thakur, Advocate on behalf of respondent no. 2 whereas Mr. R.L.Sood, Sr. Advocate assisted by Mr. Arjun Lal, Advocate on behalf of respondents No. 3 & 4 and Mr. B.C.Negi learned Sr. Advocate assisted by Mr. Nitin Thakur, on behalf of respondents No. 5 & 6. Learned Dy. Advocate General appearing on behalf of first respondent has adopted the arguments addressed on behalf of respondent No. 2 and rightly so as no relief has been claimed against the respondent-State in the writ petitions.
8. As pointed out at the very outset, since both the writ petitions have been dismissed on the grounds of delay and laches, acquiescences and also bad on account of clubbing of ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 9 various causes of action, therefore, the arguments heard only qua this part of the case as learned Single Judge has not touched the merits of the case and in case the findings recorded .
by learned Single Judge are not ultimately found to be legally and factually sustainable on analyzing the arguments to be addressed by the parties on both sides, we may proceed further to hear this matter on merits also because the Apex Court in Roma Sonkar vs. Madhya Pradesh State Public Service Commission & anr., Civil Appeal Nos. 7400-7401/2018, decided on 31.7.2018 has deprecated the practice of remanding of case to Single Judge while holding that the Single Judge is not subordinate to the Division Bench. Also that the Division Bench in Letters Patent Appeal if sets aside the judgment of the Single Judge should not remand the same to learned Single Judge and rather decide on merits itself. Mr. R.L.Sood, learned Sr. Advocate has, however, addressed the arguments in support of the remaining undecided preliminary objections also as permission to do so was granted by vide order dated 9.8.2019 passed in CMP No. 7630 of 2019 and CMP No. 7632 of 2019 filed in these appeals.
9. Mr. Shrawan Dogra and Mr. R.K.Bawa, learned Sr. Advocates have contended with all vehemence that though in ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 10 terms of the judgment passed in Judges' Association case in the year 2002, Himachal Pradesh Judicial Service Rules, 2004 were framed, however, instead of following "post based roster", .
respondent No. 2 continued to follow the "vacancy based roster".
This has led in filing I.A Nos. 234 & 235 of 2009 in WP (C) No. 1022 of 1989 and also WP (C) No. 532 of 2009. The same, however, were disposed of with a direction to seek appropriate remedy in the High Court. Another application registered as I.A No. 334 of 2014 also came to be filed in the Apex Court in WP (C) No. 1022 of 1989 for seeking a direction against the respondents to implement "post based roster". The said application was adjourned vide order dated 14.7.2016, however, while taking note of the pendency of the writ petition registered as CWP No. 696 of 2010 filed by H.P. Judicial Officers' Association, of which the writ petitioner was also member, the application was again taken up on 13.3.2018, when dismissed leaving it open to the petitioners to approach this Court for redressal of their grievances.
10. According to Mr. Shrawan Dogra and Mr. R.K.Bawa, learned Sr. Advocates, the present is not a case of settled seniority. I.A. No. 334 of 2014 was dismissed with the observations that the points in issue raised therein cannot be ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 11 decided in an interim application and rather in a substantive writ petition. It is how the writ petitions came to be filed at the instance of the writ petitioners.
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11. The grouse of the petitioners, according to learned arguing counsel is that it is the High Court which has delayed the implementation of the judgment passed by the Apex Court in Judges' Association case in 2002. The dismissal of the interim application does not render all the orders passed therein redundant and rather the same should have been implemented by respondent no. 2. It has been emphasized that the cause of action accrued to the petitioners only from their respective dates of induction to the cadre. Respondent No. 2 was following "vacancy based roster" erroneously. It was even noted so by the Judges' Committee in its meeting held on 30.3.2010 (Annexure P-9). The writ petitions could have not been thrown out on the ground of delay and laches. The delay, if any, to implement the 2002 judgment of the Apex Court in Judges' Association case is attributed to respondent No. 2, therefore, the petitioners cannot be made to suffer on this score. The findings that the settled seniority position cannot be unsettled are also not legally sustainable. Rather the principle of "pushed down" should have been followed and proper place in the seniority assigned to the ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 12 writ petitioners and also the private respondents vis-à-vis the other members of the service. The petitioners should have been assigned the seniority from their respective dates of induction to .
the cadre in the year 2006 and 2009. It has been argued that the writ petitioners have not challenged the appointments of private respondents to the service, however, they are only seeking a direction to follow the principle of "pushed down" in the matter of assigning proper place in the seniority list to the petitioners vis-à-vis the private respondents.
r It is settled law that the judgment passed by the Apex Court in Judges' Association case should have been implemented. The plea of res judicata or limitation, therefore, should have been discarded.
12. Mr. K.D.Sood, learned Sr. Advocate, while drawing our attention to the record of the case and placing reliance on the judgment of the apex court in Hon'ble High Court of Punjab & Haryana at Chandigarh vs. State of Punjab & ors., AIR 2018 SC 5284, has urged that the arguments addressed do not condone the earlier acts of acquiescence attributed to the writ petitioners and their conduct and behaviour. Learned Single Judge, as such, is stated to have rightly dismissed the writ petitions, being barred by delay and laches.
::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 1313. Now, if coming to the arguments addressed on behalf of respondents No. 3 to 6, Mr. R.L.Sood learned Sr. Advocate assisted by Mr. Arjun Lal Sood and Mr. B.C.Negi, learned Sr. .
Advocate assisted by Mr. Nitin Thakur, Advocate have submitted that the judgment in Judges' Association case is not a judgment in rem and rather persona. Had the said judgment been not implemented by respondent No. 2, the petitioners would have sought the remedy available to them at the earliest and not delayed the filing of writ petitions till the year 2018.
r The assignment of a place in the seniority list is not a recurring cause of action, therefore, according to Mr. Sood, the seniority settled long back cannot now be unsettled as if it is so done at this belated stage, will have evil and civil consequences.
14. According to Mr. Sood, the petitioners have acquiesced as they neither challenged the judgment passed in CWP No. 61 of 1999 nor the rejection of the representations they made consequent upon the said judgment assailed any further. The writ petitioners having not only acquiesced in this case but are also guilty of delay and laches. Therefore, benefit to those who have delayed to approach the Court cannot be granted. The arguments addressed on behalf of the writ petitioners that it is the High Court-respondent No. 2 which has not implemented the ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 14 judgment passed in Judges' Association case are of no consequence as according to him, the writ petitioners should have not remained slept over the matter for such a long time.
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Not only this, but they never challenged the appointment of the private respondents. They wake up from deep slumber and have now filed the writ petitions with the grievance that even after the Rules framed in the year 2004, respondent No. 2 continued to follow the "vacancy based roster" instead of "post based roster".
The petitioners being Judges were expected to be vigilant to their rights if any in this regard and approached the Court with true and material facts at the earliest.
15. One of the petitioner Mr. Rajeev Bhardwaj remained posted as Registrar General, hence, had access to the entire record and only selective record has been produced. Writ Petition (C) fNo. 532 of 2009 filed in the Apex Court was ultimately dismissed as withdrawn on 18.3.2010. The writ petition registered as CWP No. 696 of 2010 filed in this Court was also withdrawn unconditionally vide order dated 4.11.2016.
The arguments that the earlier writ petition was filed by the Association, hence the order passed therein is not binding on the petitioners are stated to be not available to them. In I.A No. 334 of 2014, the petitioners even withheld from the Apex Court the ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 15 pendency of CWP No. 696 of 2010 in this Court. The Writ Petition registered as CWP No. 61 of 1999 on the same cause of action was decided long back in the year 1999. The .
representations, the members of the service preferred consequent upon the judgment passed in this writ petition were also rejected in the year 2005 itself. The petitioners, however, have neither challenged the judgment passed in the writ petition nor the rejection of their representation. They even did not challenge the selection and appointment of respondents No. 3 & 4 also to the cadre in the year 2004 and 2006, particularly when one of the petitioners Mr. Kainthla had born in the cadre in the year 2006.
The representations made by the writ petitioners were considered and rejected by the Full Court. The decision so taken was conveyed to them on 24.8.2005, however, they did not challenge the order of rejection in appropriate proceedings in accordance with law. It is now in the year 2018-19, they raked up the issue of assigning them seniority over and above respondents No. 3 &
4.
16. According to Mr. Sood, why they have not challenged the order passed on their representation in the High Court in the year 2005 as liberty was given to them to approach the High Court on judicial side. The factum of pendency of CWP No. 696 ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 16 of 2010, according to Mr. Sood was also suppressed by them from the Apex Court as no mention in this regard was made in the application registered as I.A. No. 334 of 2016. When CWP .
No. 696 of 2010 was withdrawn without seeking any liberty to file fresh writ petition on the same cause of action, the dismissal of I.A. No. 334 of 2016 with liberty to approach the High Court in accordance with law do not extend any right in their favour to file the writ petitions. Mr. R.L.Sood, has also argued on the maxims forum shopping and forum hunting to challenge the claim of the petitioners.
17. One of the petitioners, Mr. Rajeev Bhardwaj, Registrar General of the High Court is stated to have chosen to produce the record of his own benefit and withheld the one in favour of private respondents. The note in the seniority list (Annexure P-
16) to the effect that the position reflected therein would be subject to the order passed in I.A No. 334 of 2014 by the Apex court is without any authority as according to Mr. Sood, the High Court never took any such decision. One of the petitioners Mr. S.C.Kainthla has not used the letter at page 216 of the writ petition filed by Rajeev Bhardwaj in support of his case. On the cause of action, Mr. Sood has argued that assigning of seniority in a cadre is not a continuing cause of action to challenge the ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 17 same, a constitutional right. It is reiterated that the factum of pendency of CWP No. 696 of 2010 was not disclosed in the application I.A No. 334 of 2014 filed in the Supreme Court, .
therefore, without knowing this fact, the dismissal of the said application with liberty reserved to approach this Court will not extend any right in favour of the writ petitioners to file these writ petitions.
18. Mr. R.L.Sood, Sr. Advocate has also placed reliance on the judgment of the Apex Court in State of U.P. and others vs. Arvind Kumar Srivastava & others, (2015) 1 SCC 347 to argue that no benefit can be given to those who are guilty of delay and laches.
19. Mr. R.L.Sood, learned Sr. Advocate while placing reliance on the judgment of the Apex Court in Asgar and others vs. Mohan Varma & ors., 2019 SCC Online SC 131, has contended that irrespective of dismissal of I.A No. 334 of 2014 vide order dated 13.03.2018 with liberty reserved to approach this Court, the factum of pendency of CWP No. 696 of 2010 having not been brought to the notice of the Apex Court in the said application, such direction does not extend any right in favour of the writ petitioners to file the writ petitions and as regards various orders passed in this application by the Apex ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 18 Court, the same according to Mr. Sood ultimately goes on dismissal thereof.
20. Reliance has also been placed on the judgment, again .
that of the Apex Court in State of Himachal Pradesh & ors.
vs. Rajesh Chander Sood & ors., (2016) 10 SCC 77. The relevant extract reads as follows:
"50. Relying on certain paragraphs of 'the 1999 Scheme' (referred to above), it was submitted, that the appellants have erroneously treated the date of retirement, as the date on which the right to pension accrued to the employees. In this behalf it was pointed out, that the cause of action to receive pension would accrue to an employee on the date of his retirement.
However, the right to receive pension crystalises, at the end of every successive day, and at the end of every successive month, and at the end of every successive year. It was pointed out, that it crystalises and further crystalises, giving rise to an eventual claim for pension. It was accordingly pointed out, that the date of retirement had been legally perceived, as the date on which the cause of action arose to an employee to claim pension.
Accordingly it was submitted, that the date of retirement was relevant only for the limited purpose of determining the cause of action, to receive pension. For this, learned counsel place reliance on Asger Ibrahim Amin v. Life Insurance Corporation of India, (2015) 10 SCALE 639, and invited our attention to the following observations:-
"3. On 8.8.1995, that is post the promulgation by the Respondent of the Pension Rules, the Appellant enquired from the Respondent whether he was entitled to pension under the Pension Rules, which has been understood by the Respondent as a representation for pension; the Respondent replied that the request of the Appellant cannot be acceded to. The Appellant took the matter no further but has averred that in 2000, prompted by news in a Daily and ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 19 Judgments of a High Court and a Tribunal, he requested the Respondent to reconsider his case for pension. This request has remained unanswered. It was in 2011 that he sent a legal notice to the Respondent, in response to which the Respondent reiterated its .
stand that the Appellant, having resigned from service, was not eligible to claim pension under the Pension Rules. Eventually, the Appellant filed a Special Civil Application on 29.3.2012 before the High Court, which was dismissed by the Single Judge vide Judgment dated 5.10.2012. The LPA of the Appellant also got dismissed on the grounds of the delay of almost 14 years, as also on merits vide Judgment dated 1.3.2013, against which the Appellant has approached this Court.
4. As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648, that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. This Court held:
"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 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 ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 20 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. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the 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."
We respectfully concur with these observations which if extrapolated or applied to the factual matrix of the present case would have the effect of restricting the claim for pension, if otherwise sustainable in law, to three years previous to when it was raised in a judicial forum. Such claims recur month to month and would not stand extinguished on the application of the laws of prescription, merely because the legal remedy pertaining to the time barred part of it has become unavailable. This is too well entrenched in our jurisprudence, foreclosing any fresh consideration."
21. In support of the arguments that the petitioners have quoted only that portion of the 2017 report of the Judges' Committee which supports their claim and not the entire report, reliance has been placed on the judgment of the Apex Court in Sarva Shramik Sanghathana (KV) Mumbai vs. State of Maharashtra and ors. ,(2008) 1 SCC 494. The relevant text of this judgment reads as follows:
"14. On the subject of precedents Lord Halsbury, L.C., said in Quinn v. Leathem, 1901 AC 495:::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 21
"Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular .
facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."
We entirely agree with the above observations.
15. In Ambica Quarry Works vs. State of Gujarat & others (1987) 1 SCC 213 (vide paragraph 18) this Court observed:-
"18. The ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
16. In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SCC 111 (vide paragraph 59), this Court observed:-
"59........It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
17. As held in Bharat Petroleum Corporation Ltd. & another vs. N.R.Vairamani & another (AIR 2004 SC 4778), a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed:-
::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 22"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the .
statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
In London Graving Dock Co. Ltd. vs. Horton (1951 AC 737 at page 761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
In Home Office vs. Dorset Yacht Co. (1970 (2) All ER
294) Lord Reid said, "Lord Atkin`s speech . is not to be treated as if it was a statute definition;
it will require qualification in new circumstances." Megarry, J. in (1971)1 WLR 1062 observed:
"One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament."
And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 23"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
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11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12.The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, r one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
*** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it."
22. In rebuttal, Mr. R.K.Bawa, learned Sr. Advocate while placing reliance on the report dated 30.3.2010 of the Judges' committee, has pointed out that the High Court has realized its mistake to continue with "vacancy based roster" instead of "post based roster", therefore, according to Mr. Bawa, the principle of ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 24 "pushed down" should have been followed by respondent No. 2 and appropriate place assigned in seniority to the writ petitioners. They cannot be made to suffer on account of own .
mistakes of the said respondent.
23. The legality and validity of the judgment under challenge has, therefore, to be determined in the light of the above stated factual as well as legal aspects of the matter.
24. On analyzing rival submissions, the only question which has arisen for consideration in these appeals is as to whether the claim as laid in the writ petitions is not stale nor is there any delay and laches on their part nor are they guilty of acquiescences as well as fence-sitters ?
25. Now, coming to the above question having arisen for consideration in these appeals, it would not be improper to observe that this case has a chequered history because the promotee officers of and on had been espousing their claims qua seniority vis-à-vis direct recruits since long. We may refer here CWP No. 61 of 1999 filed by the then H.P. Judicial Service Association and its members i.e. the subordinate Judicial Officers at bottom in the seniority list and also the Officers inducted to the cadre of the then Higher Judicial Service by way of promotion challenging therein the recruitment of direct ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 25 recruits to the service. The said writ petition remained pending in this Court till 2005 and it was disposed of vide order dated 18.4.2005 in the following terms:
.
"As the hearing was in progress, Mr. Rajiv Sharma, learned Senior counsel appearing for respondent o. 2 submitted that his client has issued communication No. HHC/GAZ/10-17/90-Vol-II-1933-35 dated 28th January, 2005, (which is hereby taken on record by us), whereby a gradation list of the members of H.P. Judicial Service, as it stood on 1.1.2005 was circulated. According to Mr. Rajiv Sharma, the petitioners have not challenged the gradation list circulated along with the aforesaid communication.
Without going into the disputed question whether in the light of various orders passed by this Court in this case from time to time, the petitioners were or were not required to challenge the aforesaid gradation list, we feel that in the facts and circumstances of this case, if the petitioners are afforded an opportunity of filing objections to the aforesaid gradation list and making representation(s) for suitable placement/replacement of the persons covered therein, and if such objections and representations are considered by respondent No. 2, on their merits and in accordance with law, and disposed of within a reasonable time, the interests of all the parties shall be suitably protected. On this suggestion coming from the Court, Mr. Mattewal, learned Senior Counsel ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 26 appearing for the petitioners submits that the petitioners are in absolute agreement with this suggestion and that they would withdraw this Writ petition with liberty to submit representation(s) and .
filing objection to the aforesaid gradation list and request the High Court on its administrative side to consider such objections/representations on their merits and in accordance with law and to order re- location/re-placement of the persons concerned in the aforesaid gradation list. Mr. Anand Sharma, learned counsel appearing for respondent No. 3 and Mr. Shrawan Dogra, learned counsel appearing for respondent No. 4 also have no objection to this course being adopted.
Mr. Rajiv Sharma, submits and undertakes before us that if the petitioners indeed file objections and submit representations against the aforesaid gradation list, the High Court on its administrative side shall consider such objection(s)/representation(s0 and dispose them of in accordance with law and on their merits within the shortest possible time, preferably within 2-3 months.
Based on the aforesaid agreement between the parties, the Writ petition is disposed of as settled. We pass the following order and issue hereinbelow mentioned directions:-
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 ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 27 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 30th April, 2005.
2. The High Court on its administrative side shall receive the aforesaid objections/representations, process the same, examine 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 of 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 and in accordance with law as expeditiously as possible and in any case by 31st July, 2005.
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 ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 28 consigned to records without taking any action thereupon.
Since this 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 open."
26. Consequent upon this order, representations were made by the members of H.P. Subordinate Judicial Service including the Judicial Officers similarly situated to the petitioners, which were considered by the Judges' Committee and recommended to be rejected. The High Court has accepted the report of the Judges' Committee in its meeting held on 21.9.2017. Subsequently, the order of rejection was also conveyed to the representationists. Though, in the order ibid passed in CWP No. 61 of 1999, liberty was granted to the representationists in case their representations rejected by the High Court on administrative side, however, they opted for not challenging the order of rejection of their representation(s).
27. It is in the year 2009, H.P. Judicial Officers' Association along with few of its members have preferred WP (C) No. 532 of 2009 (Annexure R-3/A) to the reply filed on behalf of ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 29 respondents No. 3 to 6 in the Supreme Court of India through Sh. J.K. Sharma, (District and Sessions Judge) praying for the following reliefs:
.
"(i) that the roster system as approved in R.K. Sabharwal's case 1995(2) SCC 745 is applicable to the appointments being made in the cadre of District Judges that the direct recruits be held to have only 8 posts in the cadre of 34 posts in view of their 25% quota, whereas the direct recruits at present are holding 11 posts beyond their quota;
(ii) that the further direct recruitment be held only when the number of direct recruits is reduced to 8 from the present 11 in the cadre of 34 posts and till then direct recruitment may very kindly be ordered to be stopped;
(iii) that any action taken by the respondents during the pendency of this writ petition viz. making appointments of direct recruits pursuant to advertisement Annexure-D, issuing gradation lists etc. shall be subject to the orders that may be passed by this Hon'ble Court;
(iv) quash the advertisement Annexure -D advertising three vacancies for the direct recruits, who are already occupying 3 excess posts in the cadre of District Judges."
28. The order (Annexure R-3/B) passed by the Apex Court reveals that the same was withdrawn with liberty to move the High Court. The Writ Petition, as such, was dismissed as withdrawn. The petitioners had also filed two interim applications registered as IA Nos. 234 & 235 of 2009 for seeking interim directions in WP (C) No. 1022 of 1989. The same were also withdrawn.
::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 3029. The H.P. Judicial Officers' Association through Sh.
P.P. Ranta (District & Sessions Judge) its President of which the petitioners were also members, had filed CWP No. 696 (Annexure .
R-3/C) praying therein the following relief:
"(i) that the roster system as approved in R.K. Sabharwal's case 1995(2) SCC 745 is applicable to the appointments being made in the cadre of District Judges and the direct recruits be held to have only 8 posts in the cadre of 34 posts in view of their 25% quota, whereas the direct recruits at present are holding 11 posts beyond their quota;
(ii) that the further direct recruitment be held only when the number of direct recruits is reduced below 8 from the present 11 in the cadre of 34 posts and till then, the direct recruitment may very kindly be ordered to be stopped;
(iii) that any action taken by the respondents during the pendency of this writ petition viz. making appointments of direct recruits pursuant to advertisement Annexure P-4 and any other advertisement which may be issued in future, issuing gradation lists, confirming direct recruits appointed in excess of their quota etc. shall be subject to the orders that may be passed in this petition by this Hon'ble Court;
(iv) quash the advertisement Annexure P0-4 advertising three vacancies for the direct recruits, who are already occupying 3 excess posts in the cadre of District Judges, beyond their quota of 8 posts;
(v) Restrain the respondents no. 1 to 3 from initiating any process this year from making any further direct recruitment in excess of their quota of 25%;
(vi) direct the respondents no. 1 to 3 to follow the roster system of R.K. Sabharwal's case, 1995(2) SCC 745 as approved by the Hon'ble Supreme Court in All India Judge's Association Case, (2002) 4 SCC 247 and as contained in Rules 5 & 13 of the new Rules of 2004 ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 31 Annexure P-2 (colly) while making the direct recruitment."
30. The Writ Petition came to be listed before a Bench .
comprising Sanjay Karol, J and P.S.Rana, J., as their lordship then was. A prayer made by learned counsel representing the petitioner for listing the matter before another Bench which allegedly was seized of a collateral matter, was rejected vide order dated 15.9.2015 with the observation "being highly improper".
31. It is during the pendency of CWP No. 696 of 2010, the writ petitioners along with S/Sh. S.L.Sharma and J.K.Sharma, filed interim application, I.A. No. 334 of 2014 in WP(C) No. 1022 of 1989 with the following relief:
"(i) direct the respondents to create cadres of Civil Judges (Junior Division) and Civil Judge (Senior Division) with effect from 01.07.1996;
(ii) direct the respondents to follow "post based roster" in appointments to the cadre of the District Judges, with effect from 31.03.2003."
32. It is seen from the order dated 28.4.2016 (Annexure P-
10) to CWP No. 2292 of 2018 that the prayer qua creation of cadre of Civil Judges, the Apex Court observed that the same merits acceptance and even such relief was granted also and the respondents were directed to create cadre of Civil Judges (Jr. Divn.) and Civil Judges (Sr. Divn.) as prescribed under the Rules ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 32 of 2004 with further direction to give effect thereto on and w.e.f.
1.7.1996 with all consequential benefits. As regards direction in the interim application to follow "post based roster", while .
noticing that respondent No. 2 is following "post based roster" in the matter of recruitment by way of promotion/direct recruitment to the cadre of District/Addl. District & Sessions Judges on and w.e.f. 31.3.2010, respondent no. 2 was directed to apply Rule 13 of H.P. Judicial Service Rules, 2004 as to how the seniority has to be drawn by applying the said rules, ascertain the roster point for three different categories i.e promotes, by accelerated promotion and direct recruits and to carry out such exercise from 31.3.2003 onwards. Such a direction, however, was passed with a caution to respondent No. 2 to place the report after carrying out the exercise to pass further orders by the apex Court and also with the following observation:
"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."
33. Such caution and circumspection has been taken by the Apex Court while passing the order Annexure P-10 with an idea that High Court will only carry out the exercise as directed ::: Downloaded on - 12/03/2020 20:23:27 :::HCHP 33 and final order to be passed by the Apex Court in the matter on consideration of the report which was directed to be filed within a period of two months.
.
34. As noticed hereinabove, I.A. No. 334 of 2014 was filed in the Supreme Court on concealment of the factum of the pendency of CWP No. 696 of 2010, therefore, when the interim application came to be listed before the Apex Court again on 14.7.2016, order Annexure R-3/F to the reply filed on behalf of respondents No. 3 to 6 came to be passed therein. The relevant extract thereof reads as follows:
"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."
35. Anyhow, consequent upon the direction (Annexure P-
10 to CWP No. 2292 of 2018), respondent No. 2 has filed the report Annexure P-12 to the writ petition. The petitioners, however, omitted to place on record the following minutes recorded by the Full Court in its meeting held on 21.9.2017, while considering the report Annexure P-12:
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 34"Below at 'A' is the Report drawn by a Committee comprising of Hon'ble Mr. Justice Vivek Singh Thakur and Hon'ble Mr. Justice Sandeep Sharma, JJ.
The Report is in compliance with the directions issued .
vide order dated 28.4.2016, by the Hon'ble Apex Court in IA No. 334 of 2014, in pending Civil Writ Petition 1022 of 1989, titled All India Judges Association and others v. Union of India and others, also the Committee has considered the objections filed by the Direct Recruits, who were given an opportunity of being personally heard.
The Direct Recruits had relied upon a five-Judge Bench judgment, rendered by the Apex Court, in Direct Recruit Class- II Engineering Officers Association v. State of Maharashtra, reported in (1990) 2 SCC 715. In the said verdict, it has been propounded by the Apex Court that where the Quota Rule has been breached and appointments have been made to the vacancies, in excess of quotas only from one source, but where the appointments have been made after following the prescribed procedure, enshrined in the Rules framed for appointments, the appointees be not pushed down below the appointees from the other source inducted in the service at a later date and where the Rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
The Committee has in its report not gone into the merits of the aforesaid submissions made on the basis of the said judgment. It was solitary dealing within the domain and purview of the directions dated 12.8.2016/4.10.2016 issued by the Apex Court in IA No. 334 of 2014, during pendency of Civil Writ Petition 1022 of 1989, titled All India Judges Association and others v. Union of India and other, besides within the limited reference made therein by the Hon'ble Supreme Court of India, vide order (supra).::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 35
The counsel representing the High Court before the Hon'ble Supreme Court to ensure that the aforesaid facts and judgment be brought to the notice of the Hon'ble Apex Court.
Also, it be brought to the notice of the Bench that .
seniority of Sh. Dharam Chand Chaudhary, Sh. P.S. Rana, Shri Sureshwar Thakur and Shri C.B. Barowalia, whose names are referred in various places of the Report, stands protected, in terms of verdict in All India Judges Association and others v. Union of India and others, (2002) 4 SCC 247, besides of extantly, of all the aforesaid being elevated as Judges of this court."
Therefore, in view of the above minutes recorded by the Full Court while examining the report submitted by the Judges' Committee, the same though was resolved to be submitted in the Hon'ble Apex Court, however, to bring to the notice of the Court the minutes so recorded.
36. Anyhow, the application IA No. 334 of 2014 when ultimately came to be listed before the apex Court on 13.3.2018 after the High Court filed the report and also the affidavit in terms of order dated 9.10.2017, following order (Annexure P-15) came to be passed therein:
"The issue raised in I.A. No. 334 of 2014 in Writ Petition (Civil) No. 1022 of 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 and others v. Union of India and other). We, ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 36 therefore, decline to entertain the I.A. any further leaving the parties to have resort to such remedies as may be available to them in law.
I.A. No. 334 of 2014 in Writ Petition (Civil) No. 1022/1989 is .
disposed of in the above terms."
37. It is thus seen from the order ibid that the apex Court has declined to entertain the interim application keeping in view the disputes inter se between the individuals/groups raised therein and it was left open to the parties to resort to remedies available to them in accordance with law. Therefore, I.A. No. 334 of 2014 was unsuccessfully pursued by the petitioners in the Hon'ble Apex Court.
38. Now if coming to the order dated 14.7.2016 (Annexure R-3/F) passed in this application and reproduced hereinabove though it was observed that in view of CWP No. 696 of 2010 pending in this Court, the apex Court deemed it proper to relegate the parties to work out their remedy in the said writ petition and await the outcome thereof. The petitioners, however, have not opted for pursuing the writ petition any further or approached the High Court with a prayer to hear the same at an early date and rather sought the permission to withdraw the same on 4.11.2016. The order annexure R-3/K to the reply filed on behalf of respondents No. 3 to 6 reveals that ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 37 learned counsel representing the petitioners on instructions had sought the permission unconditionally to withdraw the writ petition and the permission so sought was opposed by the .
private respondents herein on the ground that certain rights have accrued in their favour in view of the orders passed by this Court from time to time. This Court, however, without going into such contentions permitted the petitioners to withdraw the writ petition and rightly so because the same was sought to be withdrawn unconditionally.
r Therefore, irrespective of the apex Court directed the petitioners to pursue their remedies in accordance with law. Instead of doing so, they did not opt to do so and even writ petition No. 696 of 2010 was also withdrawn lateron unconditionally.
39. After the Apex Court declined to entertain I.A. No. 334 of 2014 and disposed of the same vide order Annexure P-15 dated 13.3.2018 by leaving it open to the parties to resort to such remedies as may be available to them in accordance with law. It is these writ petitions which have now been filed only by the petitioners and as regards the Officers similarly situated and identically placed to them in the cadre, they have not joined them (the writ petitioners) as party in these writ petitions. The similarly situated Officers in the cadre are either satisfied with ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 38 the seniority assigned to them or may approach after final outcome of these writ petition if need for them to do so arises because the discussion hereinabove reveals that different set of .
the Judicial Officers/promotees have challenged the direct recruitment to the cadre and also the inter se seniority in this Court and also the Apex Court as per their convenience, of course, unsuccessfully. In the given facts and circumstances as discussed hereinabove if it is not a case of acquiescence of claims, what else is any other inference which can be drawn therefrom. The present is, therefore, a case where the petitioners have acquiesced their claims and as such, have no right to claim the seniority over and above the private respondents.
40. Now, if coming to the second limb of arguments addressed on behalf of the writ petitioners, no doubt the apex Court in All India Judges' Association & ors. vs. Union of India, (2002) 4 SCC 247 has held as under:
"27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of higher judicial service i.e., District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the higher judicial service, namely, by promotion from amongst the members of the sub-ordinate judicial service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 39 judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary it is at the same time necessary that the judicial officers, hardworking as they are, .
become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a judicial academy which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standards, objectively adjudged, for officers who are to enter the higher judicial service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the higher judicial service i.e., the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the higher judicial service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the higher judicial service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the higher judicial service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total post in the higher judicial services must be filled by promotion on the basis of principle of merit- cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 40 service as a Civil Judge (senior division) should be not less than five years. The High Courts will have to frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate, we direct that recruitment .
to the higher judicial service i.e., the cadre of District Judge will be:
[1](a) 50 per cent by promotion from amongst the Civil Judges (senior division) on the basis of principle of merit-cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (senior division) having not less than five years qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.
[2] Appropriate rules shall be framed as above by the High Courts as early as possible.
29. Experience has shown that there has been a constant discontentment amongst the members of the higher judicial service in regard to their seniority in service. For over three decades, large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to higher judicial service. The quota for promotion which we have prescribed is 50 percent by following the principle "merit- cum-seniority" 25 percent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, in so far as seniority is concerned, is where a roster system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 41 which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is .
recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal and Ors. v. State of Punjab . One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal's case (supra) as early as possible. We hope that as a result thereof, there would be no further dispute in the fixation of seniority.
It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the higher judicial service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31st March, 2003."
41. One of the method of avoiding the seniority dispute, as per direction of the Apex Court is to apply quota in relation to posts and not in relation to vacancies. Further direction to the High Courts was to frame proper rules and methods by 31.3.2003. It is consequent upon such direction of the Apex Court, respondent No. 1 in consultation with the High Court of Himachal Pradesh has framed H.P. Judicial Service Rules, 2004.
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 42These Rules came into force on and w.e.f. 20.3.2004. Rule 5 thereof reads as follows:
"5. Method of recruitment, qualification and age limit:-
.
In respect of each category of posts specified in column(2)of the table below, the method of recruitment and minimum qualification, age limit etc. shall be as specified in the corresponding entries in columns (3) and (4) thereof.
Sl. Cadre Method of recruitment Qualification, Age limit & experience etc. No.
1. District a) 50% (now 65 %) by way Must have been in the Judge/Addl. of promotion amongst the cadre of Civil Judges District Judge Civil Judge (Sr. Divn.) on (Sr. Division) for a the basis of principle of period of not less than merit-cum-seniority and two years.
passing a suitability test as may be prescribed and conducted by the High Court in accordance with the regulations.
b) 25% (now 10% ) by Minimum service of
promotion from amongst five years including the
Civil Judges (Sr. Divn.) on service rendered in the
the basis of merit through cadre of Civil Judges
limited competition (Junior Division).
examination as may be
prescribed and conducted
by the High Court in
accordance with the
regulations.
c) 25% by direct The following shall be
recruitment from amongst the eligibility criteria
eligible Advocates on the including
basis of examination qualifications, age limit
written as well as oral (viva and experience etc.-
voce) test as may be (i) Citizen of India.
prescribed and conducted (ii) Holder of a degree
by the High Court in in Law as recognized
accordance with the by the Bar Council of
regulations. India.
(iii) Practising
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP
43
Advocate at the Bar for
a minimum period of
seven years as on the
last date fixed for
receipt of the
applications.
.
Note:
For the purpose of this
clause, in computing
the period during
which a person has
been an Advocate there
shall be included any
period during which he
has held a judicial
office.
Explanation:-I:
Judicial Office includes
any other office as may
be prescribed being
equivalent to a Judicial
r office by the high
Court in regulations
made for this purpose.
Explanation II:
Appointments to the
cadre of the District
Judges from categories
(a), (b) and (c) shall be
in accordance with a
34 point roster to be
maintained by the
High Court in this
regard.
Note:-1: Reservation in
direct recruitment
shall be as per Model
Roster for cadre
strength up to 31
posts.
Note 2: In case the
cadre strength is
changed, the
corresponding changes
shall be made in the
post-based roster.
Note 3: The
appointment already
made shall not be
affected on account of
introduction of new
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP
44
roster.
Explanation-III: The
candidates who are
employed in any
Government
department or in any
.
other Organization are
required to submit
their application(s)
through their
respective employer(s).
42. On and after coming into force the Rules, the recruitment to the Judicial Service in the cadre of District/Addl.
District Judges is being made strictly in terms thereof. True it is that instead of following "post based roster" as directed by the Apex Court in Judges' Association case, respondent No. 2 continued to follow "vacancy based roster" up to 31.3.2010. The matter with regard to following the "post based roster" or "vacancy based roster" came to be considered by a Committee of the Judges of this Court which has given its report dated 30.3.2010, Annexure P-9 to CWP No. 2061 of 2018. It has been noticed in the report that after coming into force 2004 Rules, respondent No. 2 is still following "vacancy based roster" i.e. the rotation of the vacancies in the ratio of 2:1:1 amongst promotee, selection made by limited competitive examination and direct recruitment from amongst the practicing Advocates. The Judges' committee, therefore, had every suspicion qua the correctness of ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 45 following "vacancy based roster" and as such recommended that in future respondent No. 2 should follow the "post based roster".
The vacancies in existence on 30.3.2010 when the report .
Annexure P-9 was submitted was, therefore, recommended to be filled by way of applying the "post based roster". The report Annexure P-9 when taken up for consideration by the Full Court was approved and as such on and w.e.f. 31.3.2010, respondent No. 2 is following the "post based roster".
43. True it is that respondent No. 2 was following "vacancy based roster" contrary to the direction of the Apex Court in Judges' Association case (supra), however, respondent No. 2 when detected such mistake has taken a decision to follow the "post based roster" in the matter of recruitment to the cadre of District/Addl. District & Sessions Judges and even stopped the recruitment from direct category candidates till the promotees and the Sr. Civil Judges eligible for accelerated promotion gets their quota fulfilled. Now, respondent no. 2 is following the "post based roster". All the 3 categories i.e. promotees, eligible Sr. Civil Judges under the limited competitive examination and the direct recruits are being provided their respective quota and there is no complaint in this regard.
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 4644. There is no quarrel so as to law laid down by the Apex Court and cited on behalf of the petitioners in M.S. Sandhu & another vs. State of Punjab & others (2014) 6 SCC 514, .
Narinder Singh vs. Surjit Singh (1984) 2 SCC 402, M/S Shenoy & Co. represented by its partner Bele Srinivasa Raoa Street Bangalore and others vs. Commercial Tax Officer, Circle II, Bangalore and others, (1985(2) SCC 512, Spencer & Company Ltd. And another vs. Vishwadarshan Distributors Pvt. Ltd. & others (1995)1 SCC 259, M/S Bayer India Ltd. And others vs. State of Maharashtra & others (1993) 3 SCC 29 and U.P. Pollution Control Board & ors. vs. Kanoria Industrial Ltd. And another (2001) 2 SCC 549, that the judgments/orders passed by the Apex Court are binding on all the Courts, including the High Courts in India. Therefore, the judgment passed by the Apex Court in Judges' Association case is binding on this Court and in compliance thereto, respondent No. 2 has framed 2004 Rules accordingly. The said respondent even is following the Rules in the matter of recruitment to the H.P. Judicial Service comprising Civil Judges, Sr. Civil Judges and District/Addl. District & Sessions Judges on and w.e.f.
20.3.2004. However, in the matter of recruitment to the cadre of District/Addl. District & Sessions Judges, "vacancy based roster"
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 47continued to be followed by way of an inadvertent mistake till 31.3.2010. When such mistake came to the notice of the said respondent, it has been rectified and on and w.e.f. 31.3.2010, .
the said respondent is following the "post based roster". In order to bring the quota meant for direct recruits as prescribed under the Rules at par the recruitment from this category was stopped and the posts in existence as on 31.3.2010 have been filled up by way of promotion from amongst eligible Sr. Civil Judges/by way of accelerated promotion.
r Therefore, the loss on account of inadvertent mistake attributed to respondent No. 2 either caused to promotee or the eligible Sr. Civil Judges by way of accelerated promotion has now been made good. The direct recruits had also to suffer as their recruitment stopped till each category gets its quota.
45. In the matter of seniority, as per the settled legal principles, the seniority already settled cannot be unsettled even if a particular category has exceeded its quota. It has been held by the Apex Court in Hon'ble Punjab & Haryana High Court at Chandigarh vs. State of Punjab & ors., AIR 2018 SC 5284 that in case any category has exceeded its quota in the cadre and the appointment made as per the Rules, the promotees who have exceeded the quota neither have to be pushed down in the ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 48 seniority nor their seniority has to be downgraded. However, the conduct of the petitioners and the other similarly situated officers in the cadre of District/Addl. District & Sessions Judges .
in not approaching the Court in accordance with law and pursuing their grievances in a manner to bring the same to logical end and rather withdrawn the claims they brought to this Court and also the Apex Court time and again without taking the same to its logical end lead to the only conclusion that they had acquiesced their claims and also these writ petitions having been filed in the year 2018 are definitely barred by delay and laches.
In support of such findings, support can also be drawn from the judgment of the Apex Court in Union of India & ors. vs. Tarsem Singh, (2008) 8 SCC 648. The relevant text of the judgment reads as follows:
"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 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 re-opening of the issue would affect the settled rights of third parties, then the claim will not be ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 49 entertained. For example, if the issue relates to payment or re-fixation 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."
46. The ratio of the judgment of the Apex Court in State of Himachal Pradesh & ors. vs. Rajesh Chander Sood (2016) 10 SCC 77, is that in service matters, delay and laches or limitation may not thwart the claim so long as it may be, however, if such claim if allowed does not have any adverse repercussions on the settled third party rights. The present is a case where the seniority list of 2005 and also 2018 (Annexures P-2 & P-16, respectively) have been sought to be quashed. In case such relief is granted at such a belated stage, it will certainly amount to unsettle the seniority of the officers in the cadre settled long back which is not legally permissible. The arguments that S.C.Kainthla, petitioner in CWP No. 2061 of 2018 was inducted to the cadre in the year 2006 whereas Rajeev Bhardwaj in CWP No. 2292 of 2018 in the year 2009 and as such the cause of action accrued to them from the said date(s) is again without any help to the writ petitioners as they wake up from ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 50 deep slumber for the first time only in the year 2014 when I.A. No. 334 of 2014 was filed in the Apex Court and thereafter when these writ petitions in the year 2018 in this Court.
.
47. In a case where the impugned seniority list was published at least 12 times was sought to be quashed, the apex Court in V.Bhasker Rao & others vs. State of A.P. & ors.
(1993) 3 SCC 307 has held as under:
"10. Mr. Madava Reddy then contended that the petitioners were appointed in the years 1981 and since then till the year 1988 twelve seniority lists have been published showing the petitioners below respondents 4 to 16. At no point of time they challenged the seniority lists in the Court. Even when the writ petitions filed by Chalapathi and others were pending they did not intervene before the High Court. The petitioners, according to Mr. Madava Reddy, are guilty of gross delay and latches and as such are not entitled to get relief by way of this petition under Article 32 of the Constitution of India.
11. We see considerable force in both the contentions raised by Mr. Madava Reddy. We are, however, of the view that it would be in the larger interest of the Service to dispose of this petition on merits."
In such circumstances, the petitioners were held not entitled to invoke Article 32 to claim seniority over the respondents.
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 5148. Similar is the ratio of the judgment of the Apex Court in H.S. Vankani & ors. vs. Sate of Gujarat & ors., (2010) 4 SCC 301. The relevant text of the judgment reads as under:
.
"38. 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 seniority-cum-merit or merit- cum-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 at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand.
Further it also consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among parties at the cost of sound administration affecting public interest.
39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India and Another v. S.K. Goel and Others (2007) 14 SCC 641, T.R. Kapoor v. State of ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 52 Haryana (1989) 4 SCC 71, Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604. In view of the settled law the decisions cited by the appellants in G.P. Doval's case (supra), Prabhakar and Others case, G. Deendayalan, R.S. Ajara are not applicable to the facts of the case."
.
49. The Supreme Court has also held in Shiba Shankar Mohapatra and ors. vs. State of Orissa & ors., (2010) 12 SCC 471 as follows:
"18. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-
"7. .....The party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 53
19. This Court also placed reliance upon its earlier judgment of the Constitution Bench in R.N. Bose v. Union of India & Ors. AIR 1970 SC 470, wherein it has been observed as under:-
.
"33.....It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years."
20. In R.S. Makashi v. I.M. Menon & Ors. AIR 1982 SC 101, this Court considered all aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of the employees. The Court referred to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court observed as under:-
"28........33.......We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each 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.....
30..........The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 54 prayer for quashing the said Government resolution, should have been dismissed."
21. The issue of challenging the seniority list, which continued to be in .
existence for a long time, was again considered by this Court in K.R. Mudgal & Ors. v. R.P. Singh & Ors. AIR 1986 SC 2086. The Court held as under:-
"2......A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity.........
7........Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.... In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches."
22. While deciding the case, this Court placed reliance upon its earlier judgment in Malcom Lawrance Cecil D'Souza v. Union of India & Ors.
AIR 1975 SC 1269, wherein it had been observed as under:-
"9.......Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in a seniority list after having been settled for once should not be liable ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 55 to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort 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."
23. In B.S. Bajwa v. State of Punjab & Ors. AIR 1999 SC 1510, this Court while deciding the similar issue re-iterated the same view, observing as under:-
"7. ......It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of 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 along was sufficient to decline interference under Article 226 and to reject the writ petition".
24. In Dayaram Asanand v. State of Maharashtra & Ors. AIR 1984 SC 850, while re-iterating the similar view this Court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained.
25. In P.S. Sadasivaswamy v. State of Tamil Nadu AIR 1975 SC 2271, this Court considered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this Court held that aggrieved person must approach the Court expeditiously for relief and it is not permissible to put forward stale claim. The Court observed as under :-
"2.......A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion."::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 56
The Court further observed that it was not that there was any period of limitation for the Courts to exercise their powers under Article 226 nor was it that there could never be a case where the Courts cannot interfere in a matter after certain length of time. It would be a sound and wise exercise .
of jurisdiction for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters.
26. A similar view has been re-iterated by this Court in Smt. Sudama Devi vs. Commissioner & Ors. (1983) 2 SCC 1; State of U.P. vs. Raj Bahadur Singh & Anr. (1998) 8 SCC 685; and Northern Indian Glass Industries vs. Jaswant Singh & Ors. (2003) 1 SCC 335.
27. In Dinkar Anna Patil & Anr. vs. State of Maharashtra, AIR 1999 SC 152, this Court held that delay and laches in challenging the seniority is always fatal, but in case the party satisfies the Court regarding delay, the case may be considered.
28. In K.A. Abdul Majeed vs. State of Kerala & Ors. (2001) 6 SCC 292, this Court held that seniority assigned to any employee could not be challenged after a lapse of seven years on the ground that his initial appointment had been irregular, though even on merit it was found that seniority of the petitioner therein had correctly been fixed.
29. It is settled law that fence-sitters 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. (vide Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077; State of Mysore vs. V.K. Kangan & Ors., AIR 1975 SC 2190; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 57 Ors., AIR 2000 SC 671; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv Dass vs. Union of India & Ors., AIR 2007 SC 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors. (2008) 1 SCC 210; and City and Industrial Development Corporation vs. Dosu .
Aardeshir Bhiwandiwala & Ors. (2009) 1 SCC 168).
30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.
31. The Tribunal ought to have dismissed the case of Parsuram Sahu (supra) only on the ground of delay and the laches, as the applicant approached the Tribunal at the verge of his retirement and after getting two promotions while the other parties have got three promotions. In the said case, the private respondents have not considered it proper to contest the case because both of them were likely to superannuate just thereafter on attaining the age of retirement. Undoubtedly, the said judgment and order has not been challenged by anybody and it attained finality but that remained the judgment in personem. More so, there is nothing on record to show as to whether the said applicant Parsuram Sahu could ever get any relief from the State Government."
50. The Supreme Court has also held in Bimlesh Tanwar vs. State of Haryana & ors., (2003) 5 SCC 604 that seniority is not a fundamental right but merely a civil right. It has been held as follows:
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 58" 47. It is also well settled that in the absence of rules governing seniority an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the court may have to evolve a fair and just principle which could be applied in the facts and circumstances of the case.
.
49. Seniority is not a fundamental right. It is merely a civil right. Inter se seniority of the candidates who are appointed on the same day would be dependant on the rules governing the same. Only in absence of any statutory rules, the general principles may be held to be applicable."
51. The crux of the case law so cited, therefore, is that there should be no delay to challenge the seniority. The seniority fixed long ago should not be disturbed.
52. No doubt in the case in hand, the subordinate Judicial Officers, including the member of the then H.P. Higher Judicial Service raked up the issue of excess quota of direct category candidates in the Higher Judicial Service and inter se seniority, however, either unsuccessfully or without taking such dispute to its logical end. In a case titled Rabindranath Bose & ors. vs. The Union of India & ors., (1970) 1 SCC 84, where the dispute of seniority was brought to Court after about 15 years, it has been held by the Apex Court that petitioners are not entitled to the relief sought without there being any reasonable explanation as to why they approached the Court after such an inordinate delay. The relevant text of the judgment reads as under:
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 59" 32. The learned Counsel for the petitioners strongly urges that the decision of this Court in M/s. Tilokchand Motichand's case(1) needs review. But after carefully considering the matter, we are of the view that no relief should be given to petitioners who, without any reasonable .
explanation, approach this Court under Art. 32 of the Constitution after inordinate delay. The highest Court in this land has been given Original Jurisdiction to entertain petitions under Art. 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Art. 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.
33. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to ,deprive the respondents of the rights which have accrued to them. Each 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. It was on this ground that this Court in-Jaisinghani's case ( 2 ) observed that the order in-that case would not affect Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case, we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone."
53. The Apex Court has again held so in Dr. Akshya Bisoi & anr. Vs. All India Institute of Medical Sciences & ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 60 ors., (2018) 3 SCC 391. The relevant text of the judgment reads as under:
"19 The Court is confronted in the present case with a situation in which .
recruitment to the post of Additional Professor was carried out in 2005.
That was well over 12 years ago. The petitioners have instituted these proceedings under Article 32 in November 2017 to question the order of ranking made by the Selection Committee on 12 September 2005. There is no cogent explanation for this belated recourse to legal remedies. The petitioners cannot legitimately explain the delay on their part merely by contending that they were representing to the First respondent to remedy their grievances. The petitioners may have believed in good faith that the AIIMS administration would pay heed to their grievances. They had a sympathetic ear of the Union Ministry of Health and Family Welfare. But twelve years is too long a period, by any means, to not seek recourse to judicial remedies. As the narration of facts would indicate, the Governing Body had on 14 April 2012 decided to maintain the order of merit in terms of which the Fourth respondent was ranked first, above the two petitioners.
Even thereafter, a three member committee was constituted by the Governing Body in October 2012 and a decision was once again taken on 19 July 2013 to maintain the order of seniority. This was reiterated on 12 May 2014 and 22 June 2016. The petitioners were thus aware of the consistent position which was adopted by the First respondent. The delay on their part in seeking recourse to their legal remedies must weigh against them. At this stage it would be manifestly unfair to unsettle the inter se seniority between the three Professors in the CTVS department by reopening the recommendation made by the Selection Committee in 2005.
25. For the above reasons, we have come to the conclusion that the grant of relief would unsettle the inter se seniority between the petitioners and the Fourth respondent well over twelve years since the recommendation of the Selection Committee for appointment as Additional Professors. This cannot be done. Some expressions of opinion in favour of the First petitioner in the departmental processes may have engendered a sense of ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 61 hope. But that cannot furnish a legal ground to unsettle something that has held the field for long years. We close the proceedings with the expectation that these distinguished doctors will pursue their avocations at AIIMS without rancour. Our decision on seniority is no reflection upon .
their distinguished service to a premier national institution."
54. This Court has also held in Daulat Ram vs. State of H.P. & ors., CWP No. 10776 of 2012, decided on 28.11.2017, as under:
"8. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. Vs. Prosper Armstrong (1874) 5 PC 221 thus:
"Now, the doctrine of latches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were after wards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
10. Thus, what can be taken to be settled on the strength of the aforesaid exposition of law is that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 62 while exercising such discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant .
relief. However, this would be particularly so when the third party rights have been created. However, no rigid rule can be cast in a straitjacket formula for exercising discretion and granting relief in exercise of writ jurisdiction."
55. This Court has again held in its judgment dated 10.1.2017, titled Manohar Lal vs. H.P. Vidhan Sabha & ors.
in LPA No. 69 of 2015 as under:
"7. 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 inspite of delay. Ultimately, as observed above, it would be a matter within the discretion of the Court.
8. However, 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 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 ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 63 extraordinary powers under Article 226 of the Constitution 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. The petitioner's petition should, .
therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. (Refer: P.S. Sadasivaswamy vs. State of Tamil Nadu, AIR 1974 SC 2271).
9. The judgment rendered by a Bench of two Hon'ble Judges in P.S. Sadasivaswamy's case (supra) was thereafter reaffirmed by a Bench of three Hon'ble Judges in case S.I. Paras Kumar and others vs. S.I. Ram Charan and others, (2004) 6 SCC 88.
10. If the appellant wanted to invoke jurisdiction of a writ-Court, he should have come to the Court at the earliest reasonably possible opportunity.
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. (Refer: Tridip Kumar Dingal and others vs. State of West Bengal and others, (2009) 1 SCC 768)
11. It is settled law that fence-sitters 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).
12. 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 ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 64 decision of this Court in P.S. Sadasivaswamy v. State of Tamil Nadu, 1974 AIR(SC) 2271, wherein a two-Judge Bench has held thus: -
"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 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 ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 65 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 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."
13. 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 it was held as under:
r "[14] The centripodal issue that really warrants to be dwelled upon is whether the respondents could have been allowed to maintain a claim petition before the tribunal after a lapse of almost two decades inasmuch as the said Madhav Singh Tadagi, a junior employee, was conferred the benefit of ad hoc promotion from 15.11.1983. It is not in dispute that the respondents were aware of the same. There is no cavil over the fact that they were senior to Madhav Singh Tadagi in the SAS Group III and all of them were considered for regular promotion in the year 1989 and after their regular promotion their seniority position had been maintained. We have stated so as their inter-se seniority in the promotional cadre has not been affected. Therefore, the grievance in singularity is nonconferment of promotional benefit from the date when the junior was promoted on ad hoc basis on 15.11.1983.' [15] It can be stated with certitude that when a junior in the cadre is conferred with the benefit of promotion ignoring the seniority of an employee without any rational basis the person aggrieved can always challenge the same in an appropriate forum, for he has a right to be considered even for ad hoc promotion and a junior cannot be allowed to march over him solely on the ground that the promotion granted is ad hoc in nature. Needless to emphasise that if the senior is found unfit for some reason or other, the matter would be quite different. But, if ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 66 senior incumbents are eligible as per the rules and there is no legal justification to ignore them, the employer cannot extend the promotional benefit to a junior on ad hoc basis at his whim or caprice. That is not permissible.
.
[16] We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983.
17. In C. Jacob v. Director of Geology and Mining and another, 2008 10 SCC 115 a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter.In that context, the court has expressed thus: -
"Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim."
[18] In Union of India and others v. M.K. Sarkar, 2010 2 SCC 59 this Court, after referring to C. Jacob has ruled that when abelated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 67 court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be 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.
[19] From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.
20. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, 2006 4 SCC 322 the Court took note of the factual position and laid down that when nearly for two decades the respondent-workmen therein had remained silent mere making of representations could not justify a belated approach.
[21] In State of Orissa v. Pyarimohan Samantaray, 1977 3 SCC 396 it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik, 1976 3 SCC 579. [22] In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, 2011 4 SCC 374 a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana, 1997 6 SCC 538 and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992. [18] In State of T.N. v. Seshachalam, 2007 10 SCC 137 this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: -
::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 68"....filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration.Delay and/or laches on the part of a .
government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
[24] There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another, 2009 15 SCC 321.
[25] In New Delhi Municipal Council v. Pan Singh and others, 2007 9 SCC 278 the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
[26] Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu, 1975 1 SCC 152 wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. 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 ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 69 and then approach the Court to put forward stale claims and try to unsettle settled matters.
[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.
r 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."
56. The Apex Court has also held in High Court of M.P. vs. Mahesh Prakash & ors., (1995) 1 SCC 203 as under:
"15. Mr Venugopal next submitted that it was, in any event, not open to the High Court to argue, as its learned counsel Mr P.P. Rao had done, that the writ petition of the first respondent ought to have been dismissed by the High Court on the ground of delay and laches. In Mr Venugopal's submission, such an argument could only have been raised by a party aggrieved or, in other words, adversely affected by the order under appeal. Mr Venugopal submitted that only the 39 Civil Judges in whose favour rights had been created by the non-confirmation of the 1st respondent as on 5-2-1973 were adversely affected by the order under appeal and aggrieved thereby. They, not having preferred an appeal, must be deemed to have ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 70 accepted the order under appeal. In support of this submission our attention was drawn by Mr Venugopal to the judgment of this Court in Dehri Rohtas Light Rly. Co. Ltd. v. District Board2. At paragraph 13, this Court said:
(SCC pp. 602-03) "The rule which says that the Court may not enquire into .
belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will depend on what the breach of the fundamental right and the 1 (1964) 5 SCR 64: AIR 1964 SC 477 2 (1992) 2 SCC 598 remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied 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 a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence.
The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches."
16. In our view, there can be no doubt that when its administrative order is set aside the High Court is adversely affected. It is, therefore, a party aggrieved. In the instant case, even assuming that we ignore the observations of the Division Bench in regard to mala fides, lack of a dispassionate approach and extraneous considerations on the ground that these had not been urged by the first respondent and the High Court could have sought expunction thereof, as suggested by Mr Venugopal, the order under appeal found that the first respondent had been discriminated against by the Full Court. It is impossible to accede to the submission, in these circumstances, that the High Court was not aggrieved by the order under appeal. Apart therefrom, the 1st respondent's delay in approaching the writ court had resulted in the creation of a long- settled position as to seniority in the subordinate judiciary; disturbing the Ion--settled position adversely affected not only the 39 Civil Judges whose seniority was displaced but also the functioning of the subordinate judiciary, responsibility for which ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 71 lay with the High Court. It is, therefore, as open to the High Court to agitate the ground of delay and laches as it would have been open for the 39 Civil Judges had they preferred an appeal."
.
57. In the case in hand, the challenge on the ground of delay and laches to the writ petition is not only on behalf of respondent No. 2, the High Court but also the private respondents No. 3 to 6.
58. Similar is the ratio of the judgment of the Supreme Court in Prabhakar vs. Joint Director, Sericulture Department & another, (2015) 15 SCC 1. The relevant text of the judgment reads as under:
"[37] Let us examine the matter from another aspect, viz. laches and delays and acquiescence.
[38] It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. 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 doctrine of acquiescence and non-suited 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".
[39] This principle is applied in those cases where discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver etc. These principles are also applied in the writ petitions filed Under Articles 32 and 226 of Constitution of India. In such cases, Courts can still refuse relief where the delay on the Petitioner's part has prejudiced the Respondent even though ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 72 the Petitioner might have come to Court within the period prescribed by the Limitation Act.
[40] Likewise, 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.
[41] 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 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. As mentioned above, 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 non-existent."
59. The Apex Court has again held in U.P. Jal Nigam & anr. Vs. Jaswant Singh & anr., (2006) 11 SCC 464 as under:
"[6] The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Art. 226 of the Constitution of India. When a person who is not vigilant of his rights and acquiesces ::: Downloaded on - 12/03/2020 20:23:28 :::HCHP 73 with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which .
was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.06.2005 and 31.07.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much after their retirement. Whether such persons should be granted the same relief or not ?
[12] The statement of law has also been summarized in Halsbury's Laws of England, Para 911, pg. 395 as follows :
" 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
(ii) any change of position that has occurred on the defendant's part.
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 were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches. "
::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 74[13] In view of the statement of law as summarized above, the respondents are guilty since the respondents has acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have .
filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence.
16. Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the Court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached the Court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for their retirement, those persons should be allowed to stand to benefit and not others. ........."::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 75
60. On behalf of respondent No. 2 and on behalf of the petitioners also, reliance has been placed on the judgment of the .
Apex court in Punjab & Haryana High Court vs. State of Punjab, 2018 SCC Online SC 1728. In this case, the direct recruits and superior Judicial Officers of Punjab Judicial Service had assailed the seniority list dated 24.12.2015 by filing different set of writ petitions in the High Court of Punjab and Haryana in the year 2016. The writ petitions were filed and the impugned seniority list dated 24.12.2015 was set aside with the observation that promotion of officers under Rule 7(3) (a) (regular promotion) under 2007 Punjab Rules made beyond the quota was held as adhoc and the promotees also not held entitled to get benefit of that service for the purpose of seniority and rather they were ordered to be placed at the bottom of the seniority after direct recruitment. Similarly, the direct recruits were also not held entitled for being considered as members of the cadre from the date of their recommendation by the High Court to the State for appointment and as a result thereof their seniority was ordered to be recast.
61. Aggrieved by the judgment passed by the Division Bench of Punjab and Haryana High Court, Civil Appeal Nos.
::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 765518-23 of 2017 came to be filed in the Apex Court. The Apex Court has held as under:
.
"70. In view of the foregoing discussion, we come to the following conclusions:
1) Promotion of fifteen officers under Rule 7(3)(a) cannot be held beyond their quota.
2) The promotion of fifteen officers cannot be said to be ad-
hoc nor they can be directed to be put at the bottom of the seniority list.
3) The High Court even though accepted the principle that roster is applicable in the seniority but in the operative portion of the judgment in paragraph 208 did not issue any direction to recast the seniority as per r the roster given in the Appendix-B which is an apparent error committed by the High Court.
4) Rule 2007 having been brought in place to give effect to the judgment of this Court in All India Judges association case, (2002) 4 SCC 247, while interpreting the Rules 2007 the direction issued by this court have to be kept in mind and rules cannot be interpreted in a manner so as to violate the directions issued by this Court in the above judgment.
5) Rule 7(4) read with Appendix-B has to be read in the light of direction of this Court in All India's case and harmonious construction of the rule clearly indicates that roster which has been expressly made applicable for filling the post of all the three streams shall be applicable while determining the seniority."
And granted the following reliefs:
"71. In view of foregoing discussion, the seniority list dated 24.12.2015 is to be set aside. After setting aside the seniority list, two courses are open. Firstly, to remit this matter to the High Court again to recast the seniority list as per our direction and secondly, to finalize seniority list in this judgment itself. We choose to adopt the second course for two reasons:::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 77
a) Already period of three years has elapsed when the tentative seniority list was published. Finalization of seniority as early as possible is essential and necessary for administration of justice.
b) There is no dispute regarding interse seniority of the promotees under Rule 7(3)(a) and issue pertaining to interse-
.
seniority of out of turn promotees and direct recruits have already been finalized by us. Only exercise which is to be undertaken is to place officers of three streams in accordance with the roster as indicated in Appendix- B. After placing the officers of three streams, the seniority position as per roster comes as follows:............"
62. It is thus seen from the conclusion drawn by the Apex Court that 15 officers promoted under Rule 7(3)(a) were not held to be promoted beyond their quota and rather as per rules and neither their promotion was held to be adhoc nor they were required to be placed at the bottom of the seniority list.
63. On the ratio of this judgment, Mr. K.D.Sood, learned Sr. Advocate has argued that the recruitment made prior to 31.3.2010 being under the Rules need no interference nor the direct recruits to be pushed down and assigned the seniority below the petitioners. However, to place reliance on this judgment would amount to touch the merits which in the case in hand cannot be done in view of the findings hereinabove that the claim of the petitioners is stale and the writ petitions are barred by the principle of delay and laches. Otherwise also, in the judgment (supra), the seniority list of 4.12.2015 was challenged without any delay i.e. in the year 2016 whereas in the case in ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 78 hand all the seniority lists w.e.f. 2005 onwards till 2018 have been sought to be quashed. The relief so sought in view of the findings hereinabove is, therefore, highly time barred.
.
64. Not only this, the private respondents in the case in hand have been selected and appointed to the cadre consequent upon the posts advertized by respondent No. 2 and the selection process in accordance with the Rules followed. They have been selected on the basis of their merit long back i.e. respondent No. 3 on 18.5.2004 and respondent No. 4 on 17.12.2006. The said respondents being not at any fault can neither be pushed down nor the seniority can be assigned to them below the petitioners, at this belated stage, that too when the petitioners opted for not challenging their selection and appointment during all these years. The judgment of the Apex court in Ajit singh & others (II) vs. State of Punjab & ors. (1999) 7 SCC 209 & Maharashtra Vikrikar Karamchari Sangathan vs. State of Maharashtra & another (2000) 2 SCC 552 cited on behalf of petitioners are not applicable for the reason that ratio thereof would have been of some help to the case of the petitioners on merits. The claim of the petitioners, however, herein has been rejected being barred by delay and laches and they having acquiesced their claims as is apparent from the acts and deeds ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 79 attributed to them and their conduct. There cannot be any quarrel to the law laid down by the Apex Court in Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) .
Ltd. And another, (1997) 6 SCC 450. In terms of the law laid down by the Apex court in Judges' Association case, "post based roster" in the matter of recruitment to the cadre of District/Addl.
District & Sessions Judges was required to be followed after the Rules framed in the year 2004. Respondent No. 2 has started following "post based roster" on and w.e.f. 31.3.2010, as discussed in detail hereinabove. Therefore, there may be delay which as per the discussion hereinabove is on account of respondent No. 2 was inadvertently following the "vacancy based roster". The writ petitioners, however, failed to explain their conduct in not agitating the matter if not from an early date at least immediately on their induction to the service in the cadre of District/Addl. District & Sessions Judges. The interim application I.A. No. 334 of 2014 in which they were also applicants was ultimately declined to be entertained by the Apex court and accordingly disposed of. Therefore, any order passed during the pendency of the application ceases to exist on its dismissal by the Apex Court. Support in this regard can be drawn from the judgment of the Apex court in Kalabharati ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 80 Advertising vs. Hemant Vimalnath Narichania & ors. (2010) 9 SCC 437. The relevant extract of the judgment reads as under:
.
"15. No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. (vide:
Dr. A.R. Sircar v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Supp. (2) SCC 726; the Committee of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; GTC Industries Ltd. v. Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation v.
C.L. Mishra, (2005) 8 SCC 423).
19. In Karnataka Rare Earth & Anr. v. Senior Geologist, Department of Mines & Geology & Anr., (2004) 2 SCC 783, a similar view has been reiterated by this Court observing that the party who succeeds ultimately is to be placed in the same position in which they would have been if the Court would not have protected them by issuing interim order."
65. Reliance in this regard can also be placed on the judgment again that of the Apex court in Shipping Corporation ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 81 of India Ltd. vs. Machado Brothers & ors., (2004) 11 SCC
168. The relevant text of the judgment reads as under:
.
"27. While dismissing the application I.A.No.20651/2001 the courts below proceeded not on the basis that the original notice of termination has not become infructuous, but on the basis that the said application lacks in bona fide and if the said application is allowed the interlocutory injunction hitherto enjoyed by the plaintiff will get vacated and consequently the plaintiff will be prejudiced. The question for our consideration now is whether such ground can be considered as valid and legal. While so considering the said question one basic principle that should be borne in mind is that interlocutory orders are made in aid of final orders and not vice versa. No interlocutory order will survive after the original proceeding comes to an end. This is a well established principle in law as could be seen from the judgment of this Court in Kavita Trehan (Mrs.) & Anr. vs. Balsara Hygiene Products Ltd. (1994 5 SCC 380) wherein it is held :
"Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible."
28. Therefore, in our opinion, the courts below erred in continuing an infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse.
29. The next ground given by the courts below that the dismissal of the suit would prejudice the respondent, again on the ground of interlocutory order getting dissolved, cannot also be sustained. If the suit in fact has become infructuous consequences of dismissal of such suit cannot cause any prejudice to the plaintiff. As a matter of fact, the consequence should be to the contrary, that is, such continuance of infructuous suit would cause prejudice to the defendant."
::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 8266. In view of what has been said hereinabove, it is held that the petitioners have laid stale claims in the writ petitions which certainly are barred by delay and laches. Therefore, .
allowing the writ petitions would certainly amount to unsettle the seniority position long back. The seniority lists w.e.f. 2005 onwards cannot also be quashed at this stage. Learned Single Judge, therefore, has not committed any illegality or irregularity while arriving at a conclusion that the claims laid by the petitioners in the writ petition being stale and also barred by delay and laches and also time barred cannot be accepted nor the settled seniority position can be unsettled at this belated stage.
67. The present is rather a case where the petitioners on account of their acts, deeds and conduct as well as acquiescences are not entitled to the relief sought in the writ petition. Learned Single Judge has also rightly held that the writ petitions are bad on account of clubbing of multiple causes of action for the reason that when no relief has been claimed against respondents No. 5 & 6 who were appointed to the cadre on 27.9.2007 and 23.10.2009, respectively, their inclusion in the writ petitions is obviously for an oblique purpose and extraneous consideration to show that the writ petitions have been filed ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 83 within a reasonable time. It is, however, not so for the reasons in detail recorded hereinabove.
68. Though respondents No. 3 to 6 were permitted to .
make submissions on all the remaining preliminary objections such as res judicata, conduct, behaviour of the petitioners and forum shopping and forum hunting, however, when both the writ petitions have been held to be barred by delay and laches and the petitioners on account of their acts, deeds and conduct have been held to be guilty of acquiescences, hence not entitled to the relief claimed in the writ petition, further discussion on the submissions made by Mr. R.L.Sood, learned arguing counsel on their behalf would amount to overload this judgment unnecessarily as even no useful purpose is also likely to be served thereby.
69. For all the reasons hereinabove, both the appeals fail and the same are accordingly dismissed. Consequently, the judgment passed by learned Single Judge is affirmed.
( Dharam Chand Chaudhary ), Judge.
March 11, 2020, ( Sureshwar Thakur ),
(karan-) Judge.
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84
Per Sureshwar Thakur, Judge.
CWP No. 2061, titled as S.C. Kainthla vs. State of H.P. & others, and, CWP No. 2292 of 2018, titled as Rajeev Bhardwaj vs. State of .
H.P. & others, were both dismissed, on 1.5.2019, through, a common verdict rendered thereon(s), by the learned Single Judge, of, this Court.
2. The verdict rendered by the learned Single Judge, upon, the afore writ petitions became assailed by both the petitioners, through, theirs respectively constituting LPA No. 33 of 2019, and, LPA No. 39 of 2019, before the Division Bench of this Court. One of the member(s) of the Division Bench (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), has, dismissed both the afore LPAs. However, for the reasons to be assigned hereinafter the undersigned, is, constrained, to, disconcur with the verdict placed before me, for consideration, by Hon'ble Mr. Justice Dharam Chand Chaudhary, J.
Before proceeding to assign reason(s), for, my dissenting
3. from the view, as recorded, in the verdict placed before me, for, consideration, by the Hon'ble Mr. Justice Dharam Chand Chaudhary, J., it is incumbent to allude, to, the H.P. Judicial Service Rules, 2004, ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 85 Rules whereof came into effect on, and, with effect from 20.03.2004.
The relevant Rule prescribing, the, method of recruitment, qualification, .
and, age limit, for, the aspirants, as, drawn, from, various categories/streams, is, extracted hereinafter:-
Sl. Cadre Method of recruitment Qualification, Age limit No. & experience etc.
1. District a)50%(now 65%) by way of Must have been in the Judge/Addl. promotion amongst the Civil cadre of Civil Judges District Judge Judge (Sr. Divn.) on the basis (Sr. Division) for a of principle of merit-cum- period of not less than seniority and passing a two years.
r suitability test as may be
prescribed and conducted by
the High Court in accordance
with the regulations.
b) 25% (now 10%) by Minimum service of
promotion from amongst Civil five years including the
Judges (Sr. Divn.) on the basis service rendered in the
of merit through limited cadre of Civil Judges
competition examination as (Junior Division)
may be prescribed and
conducted by the High Court
in accordance with the
regulations.
c) 25% by direct recruitment The following shall be
from amongst eligible the eligibility criteria
advocates on the basis of including qualification,
examination written as well as age limit and experience
oral (via voce test) as may be etc.-
prescribed and conducted by (i) Citizen of India.
the High Court in accordance (ii) Holder of a degree
with the regulations. in law as recognized by
the Bar Council of
India.
(iii) Practising Advocate
at the Bar for a
minimum period of
seven years as on the
last date fixed for
receipt of the
applications.
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86
Note:-
For the purpose of this
clause, in computing the
period during which a
person has been an
advocate there shall be
.
included any period
during which he has
held a judicial office.
Explanation-I:
Judicial Office includes
any other office as may
be prescribed being
equivalent to a Judicial
office by the High Court
in regulations made for
this purpose.
Explanation II :
Appointments to the
r cadre of the District
Judges from categories
(a), (b) and (c) shall be
in accordance with a 34
point roster to be
maintained by the High
Court in this regard.
Note:-1. Reservation in
direct recruitment shall
be as per Model Roster
for cadre strength up to
31 posts.
Note 2:- In case the
cadre strength is
changed, the
corresponding changes
shall be made in the post
based roster.
Note 3:- The
appointment already
made shall not be
affected on account of
introduction of new
roster.
Explanation- III: The
candidates who are
employed in any
government department
or in any other
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87
Organization are
required to submit their
application(s) through
their respective
employer(s).
.
4. Shri S.C. Kainthala belongs, to, the apposite feeder category of Civil Judge (Senior Division), qua wherewith a 50% quota is prescribed, for, promotion, to, the post District Judge/ Additional District Judge , hence, on the apposite contemplated principle, of, merit-cum-
seniority, (a) and, also upon the passing(s), of, suitability test(s), as may be prescribed, and, conducted, by, the High Court, in, accordance with the regulations. However, Mr. Rajeev Bhardwaj, belongs to the category, of, limited competitive examination(s), as, ordained to be conducted, from, amongst the cadre, of, Civil Judges (Sr. Division), vis-a-vis, the promotional post, of, District Judge/Addl. District Judge, and, qua wherewith, a, 25% quota is prescribed. However, the private respondents, belong to the category, of, direct recruitees or from the envisaged stream(s), of, eligible advocates, and, qua wherewith, a, 25% quota is prescribed, for their induction(s), as, Additional District Judge(s)/District Judge(s).
::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 885. Apart from the afore imperative necessity, hence, of extracting the afore apposite Rule, for, therethrough making .
determination, vis-a-vis, the competing claim(s), of, the writ petitioners, and, of, the private respondents concerned, and, as, appertaining to their inter se seniority, (a) also, the apposite Rule 13, of, the Rules and Regulations, of, H.P. Judicial Services, rather, besides therealongwith regulating, the, hereat res controversia, hence, for, therethrough(s) reckoning their inter se seniority, does necessarily, enjoins its extraction.
The apt underlined portion, of, Rule 13, of, the Rules and Regulations of the H.P. Judicial Services, reads as under:-
"13. Seniority:- (1) Where officer 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 officer appointed a lower point.
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.::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 89
(2) where more than one Officers are promoted to cadre at the same time inter-se seniority of persons so promoted shall be determined by their inter-se seniority in the lower cadre.
.
(3). Where direct recruitment is made to a cadre, the inter-se seniority of persons 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 so published shall be issued for the purpose of making promotions to the next higher cadres."
Moreover, the verdict rendered by the Hon'ble Apex Court in a case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, also is the prima donna reckoner, for, the requisite purpose. In the verdict supra, the hon'ble Apex Court has rendered explicit directions, upon, all the High Courts concerned, to specify the quotas, in, relations to posts, and, not in relation to vacancies. Further thereonwards it has also been mandated therein, that, the afore quotas shall constitute, the, regulatory mechanism, hence, for settling all disputes arising, amongst, the competing litigants' claims, vis-a-vis, their contentious inter-se seniority, upon, theirs respectively becoming inducted against the post, of, Additional District ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 90 Judge(s)/District Judge(s), from amongst, the stream, of, direct recruits, and, from the afore apposite alternative thereto channels or streams, of, .
Civil Judges (Senior Division). However, the afore expostulation of law borne in All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, has been directed, to, hold only prospective effect, and, also a further mandate, is, borne therein, vis-a-vis, the seniority of the apposite inductees, into, service, as, Addl. District Judge(s)/District Judge(s), especially prior to 31st March, 2003, even if, their respective inductions thereto, is, in excess of the apposite quota, rather not ordaining any disturbances or unsettling(s). The relevant paragraphs No.27, 28 and 29, of, the verdict supra rendered, by, the Hon'ble Apex Court, reads as under:-
"27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of higher judicial service i.e., District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the higher judicial service, namely, by promotion from amongst the members of the sub- ordinate judicial service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary it is at the same time necessary that the judicial officers, hardworking as they are, ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 91 become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a judicial academy which is very necessary. At the .
same time, we are of the opinion that there has to be certain minimum standards, objectively adjudged, for officers who are to enter the higher judicial service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the higher judicial service i.e., the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the higher judicial service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the higher judicial service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the higher judicial service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total post in the higher judicial services must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (senior division) should be not less than five years. The High Courts will have to frame a rule in this regard.::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 92
28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the higher judicial service i.e., the cadre of District Judge will be:
[1](a) 50 per cent by promotion from amongst the Civil Judges (senior .
division) on the basis of principle of merit-cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (senior division) having not less than five years qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.
[2] Appropriate rules shall be framed as above by the High Courts as early as possible.
29. Experience has shown that there has been a constant discontentment amongst the members of the higher judicial service in regard to their seniority in service. For over three decades, large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to higher judicial service. The quota for promotion which we have prescribed is 50 percent by following the principle "merit-cum-seniority" 25 percent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, in so far as seniority is concerned, is where a roster system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 93 to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal and Ors. v. State of Punjab . One of the methods of avoiding any litigation and .
bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal's case (supra) as early as possible. We hope that as a result thereof, there would be no further dispute in the fixation of seniority.
It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the higher judicial service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31st March, 2003."
6. Even though, the judgment rendered, by, the learned Single Judge of this Court, is, rested upon his accepting preliminary objection(s), as, became, reared by the private respondents concerned, hence, in their respective replies, as, became furnished to the respective petitions, (a) objections whereof, appertain to the writ petitions, being hit by vices, of, delay and laches, and, also theirs being permeated with entrenched vices of estoppel, and, acquiescences. However, since, the emphatic nuance, of, the afore assigned reason, is, made dependent, upon, various citations, each carrying, a, proposition of law, vis-a-vis, ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 94 rather the completely settled, and, determined apposite inter se seniority, being unamenable, for re-opening, conspicuously after .
elapsings, of, an unduly procrastinated period of time, since the apt contentious inter se seniority, becoming clinched or settled. Obviously, hence, when the afore assigned reason, by the learned Single Judge, is, also necessarily entwined with the merits, of, the case, (b) given his necessarily making a concomitant conclusion, vis-a-vis, the contentious inter-se seniority, amongst, the aggrieved appellants, and, the private respondents, hence, becoming finally rested or settled, (c) whereas, for, the reasons to be assigned hereinafter, the contentious inter se seniority amongst them, is, yet in a state of flux or is yet to be formidably clinched, hence, thereupon, it is deemed fit to also decide, the, entire lis engaging the parties at contest, hence, on merits. (d) The further reason for this Court, becoming constrained, to, allow the writ petitions, after, its proceeding, to delve deep into the merits, of, the case, and, to thereafter also obviously make a complete adjudication, vis-a-vis, the contentious competing claims, of, the contesting litigants concerned, is, sparked, by, the factum, that, the Hon'ble Apex Court in Roma Sonkar Vs. Madhya Pradesh State Public Service Commission and another, ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 95 Civil Appeal Nos. 7400-7401/2018, decided on 31.7.2018 (e) has deprecated the practice of remanding, of, a lis, to, the learned Single .
Judge, (f) and, has also held that the learned Single Judge, is, not subordinate to the Division Bench, (g) besides with, a, further expostulation of law being borne therein, that, the Division Bench, in, a, Letters Patent Appeal, if sets aside the judgment, of, the learned Single Judge, (h) thereupon, it should not remand the same, to, the learned Single Judge, rather should proceed to decide the lis on merits, (i) hence, becomes the supplemental principle, for, the undersigned, proceeding to completely rest, the, contentious claim(s), of, the hereat contesting litigants. Moreover, with the undersigned accepting the report, of, the Hon'ble Judges Committee, hence, constituting, the apt facilitator, for, the making, of, a complete adjudication, of, the, extant lis, (j) thereupon, too, upon disapprobation, of, the, verdict, of, the, learned Single Judge, as, has become, untenably anvilled, upon, vices, of, delay, and, laches, rather baulking the respective petitioners, hence, it is deemed fit, to, thereon(s) i.e. the Hon'ble Judges Committee's report, rather finally rest the extant lis.
::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 967. The concurrent predominant reason, which prevailed, upon, the learned Single Judge, and, also, upon, the, Hon'ble Mr. Justice .
Dharam Chand Chaudhary, Judge, for, both making a conjoint verdict, upon, the afore LPAs, is, grooved, (ii) upon, a decision of the Hon'ble Apex Court rendered in a case titled as B.S. Bajwa and another v. State of Punjab and others, reported in AIR 1999 SC 1510, wherein, the Hon'ble Apex Court, has expostulated, that, any belated endeavours, as, made by the aggrieved, in, challenging, the, drawing(s), of, seniority lists, cannot be countenanced, when hence it would untenably beget disturbing(s) or unsettling(s), of, a clinched or a finally rested controversy. Further thereonwards reliance, is, also conjointly placed, by the learned Single Judge, and, by one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), upon, a judgment of the Hon'ble Apex Court, rendered in a case titled, as, Bimlesh Tanwar vs. State of Haryana and others, reported in (2003)5 SCC 604, (i) wherein, it has been propounded, vis-a-vis, claims, of, seniority not being a fundamental right, rather being merely, a, civil right. Furthermore, it has also been expostulated therein, that, inter se seniority, of, all candidates, who are appointed, on the same day, would be dependent, on, the rules ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 97 governing the same, and, that in the absence of rules governing seniority, an executive order, may be issued, to, fill up the gap.
.
8. However, the decision of the Hon'ble Apex Court, as, rendered in a case titled, as, B.S. Bajwa and another v. State of Punjab and others, and, reported in AIR 1999 SC 1510, for, hence detailed/ad nauseam reasons assigned hereinafter, is, applicable, only, upon, the contentious seniority becoming finally settled or it becoming conclusively rested, (a) and, obviously it becomes inapplicable, as hereat, upon, the contentious seniority list(s), as prepared, vis-a-vis, the contesting litigants concerned, being, yet in a state of flux, or it remaining unsettled, rather, it remaining not finally clinched. Moreover, the decision of the Hon'ble Apex Court rendered, in, a case titled as Bimlesh Tanwar vs. State of Haryana and others, reported in (2003)5 SCC 604, is also rendered inapplicable, vis-a-vis, the factual matrix prevailing hereat, given, the reasons assigned hereinafter, rather making palpable disclosures, vis-a-vis, the verdict rendered by the Hon'ble Apex Court, in a case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, hence, becoming acquiesced, to, be breached, (b) whereas, it constitutes the settled ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 98 inflexible, and, inviolable norm(s), for, determining the contentious inter se seniority, amongst, all the competing incumbents. Re-emphasisingly, .
it, underscores, the, necessity, of, induction(s) into service, of, the inductees concerned, rather only , upon, the apt strictest adherence(s) being recoursed, vis-a-vis, the therein(s) expostulated norm, of, "post based roster", and, not in consonance, with, the adopted hereat, invalid norm of, "vacancy based roster". Unhesitatingly, and, apart therefrom also uncontrovertedly, uptill now, (c) given, the stand projected, by, the High Court in its reply, and, also given the displays made, in, the minutes drawn in the year 2010, by the Hon'ble Judges Committee,displays whereof rather with utmost candour, exemplify vis-a-vis, the, High Court, explicitly acquiescing, vis-a-vis, the afore regulatory mechanism, for, induction into service, to, the post of Addl. District Judge(s)/District Judge(s), hence, becoming breached, (d) thereupon, the afore acquiesced factum, does necessarily, beget, a, further corollary, vis-a-vis, the afore expostulated canon, being transgressed. The relevant portion, of, the report of the Hon'ble Judges Committee, as, drawn in the 2010, reads as under:
"After coming into force of the new Rules, the cadre strength has got increased to 34. Now as per extant Rules half of the posts are ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 99 to be manned by promotees, 1/4th by recruitment from amongst the Civil Judges (Senior Division), on the basis of Limited Competitive Examination and the remaining 1/4th by way of .
direct recruitment from amongst the practicing Advocates. The posts are to be manned by the persons from three sources, on Post Based Roster. 34-point Roster (Annexure-B) is required to be maintained.
As per 34-Point Roster, first two posts are to be manned by promotees, third by the Civil Judge (Senior Division) selected on the basis of Limited Competitive Examination, and, the fourth by direct recruitment from amongst the practicing Advocates, and similarly fifth and sixth posts by the promotees, seven post by the Civil Judges (Senior Division), on the basis of Limited Competitive Examination, and, the eighth post by direct recruit from amongst the practicing Advocates, and so on. This way out of the total cadre of 34, 18 posts are required to be manned by promotees, 8 by members of Judicial Service, selected on the basis of Limited Competitive Examination and the remaining 8 by direct recruitment from amongst the practicing Advocates.
However, after coming into force of the extant Rules, we have been following the vacancy based roster, that is to say that we have been rotating the vacancies in the ratio of 2:1:1, amongst the promotees, Officers selected by Limited Competitive Examination, and, direct recruits from amongst the practicing Advocates, correctness of which is doubtful."::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 100
9. Succor and support is also drawn, by one, of, us (Hon'ble Mr. Justice Dharam Chaudhary, J.), for, his concluding, that, the .
petitioners/appellants' belated apposite challenge, rather warranting its being discountenanced, hence, from, a decision, of, the Hon'ble Apex Court, rendered in a case titled as K.R. Mudgal and others vs. R.P. Singh and others, reported in AIR1986 SC 2086, besides also from a decision, of, the Hon'ble Apex Court rendered, in, a case titled as Shiba Shankar Mohapatra and others vs. State of Orissa and others, reported in (2010)12 SCC 471, (i) wherein, it has been expostulated, that, the controversy appertaining to the seniority, of, the litigants therein, was amenable rather for declinings, as, the apposite agitations happened, hence, at a belated stage, and, further that the Courts exercising public law jurisdiction, rather not encouraging agitations, of, stale claims, especially where the right of third parties hence crystallise, in, the interregnum. However, with all firmness, and, formidability, the afore verdicts are again applicable only qua settled, and, finally determined seniority lists, as, made in consonance, with, the then prevailing rules, guidelines or executive instructions, and, reiteratedly are inapplicable hereat, as, the apposite lis remains extantly both unsettled, ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 101 and, unclinched. Even further thereonwards, in a verdict rendered, by, the Hon'ble Apex Court in Shiba Shankar Mohapatra's case (supra), .
the Hon'ble Apex Court, dehors, any statutory Rules, for, determining the inter-se seniority, of, the contesting litigants therein, had deemed it, not to disturb the uninterrupted practice, of, the State, in, preparing, the, inter-se seniority list, of, the officers concerned, and, obviously hence had thereafter concluded, that, when, the, reckoning(s) or the concomitant rankings, in, the seniority list, of, the contesting litigants therein, hence, remained unchallenged rather within, a, reasonable period, of, time, hence since its drawing, (ii) thereupon, the aggrieveds' challenge, became hit by, the, baulkings vices, of, delay, and, laches, (iii) especially when no good and tangible ground, was, coming forth, in, explication, of, the delay, in, challenging the seniority list, (iv) necessarily hence, both the afore verdicts, cannot supersede, the, verdict, of, the Hon'ble Apex Court rendered, in, a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and, also cannot withstand the clout, of, the, apposite mandatory governing rules, hence, wherefrom, the, inter se disputed seniority, of, the contesting litigants, has, yet to be determined. The gravamen of the ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 102 afore conclusion is formed obviously, upon, the factual matrix prevailing, in, the afore alluded judgment(s), as, rendered by the Hon'ble Apex .
Court, and, with the factual contentious matrix borne, in, the extant case, hence being completely and diametrically contradistinct, rather therefrom, inasmuch, as, it being fully dependent solitarily, upon, the verdict (supra), thereupon, also it would be unbefitting, to, draw any succor therefrom.
10. The Hon'ble Apex Court, in, a verdict rendered in a case titled, as, Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others, reported in (1990)2 SCC 715, has in paragraphs No. 47 (D) and 47(E) thereof rather held:-
"47. To sum up, we hold that:-
...................
(D) If it becomes impossible to adhere to the exising quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the Rules for the appointment, the appointees should not ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 103 be pushed down below the appointees from the other source inducted in the service a later date."
Though, with immense fortifying vigour, dependence, is, made thereon, by, the .
private respondents concerned, to, contend qua even, if their induction into service, is, in excess, of, the afore norms, as, become prescribed, in, a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, (i) yet they are not amenable, for, theirs being pushed down below, the, appointees drawn from other valid source(s), hence subsequent, to their induction into service. However, even the afore dependence, as, made thereon, is, rendered extremely frail, and, also becomes completely enfeebled, through, the imperative diktat rendered, by, the Hon'ble Apex Court, in, a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, besides, through, categorical directions rendered, upon, the High Court, of, H.P., by the Hon'ble Apex Court, in, IA No. 17/2011 in IA No.244/2009 and IA Nos. 1 & 2 in IA Nos. 17/2011 in IA No.244/2009 and IA Nos. 334/2014, IA Nos. 335, 336, 337, 338/2015 and IA No. 339 & 341/2016, on 28.4.2016, the relevant portion whereof reads, as, under:-
"In as much as, 34 point roster having been drawn by the High Court and the relevant rules relating to seniority, namely, Rule-13 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 ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 104 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 Rule 13 which prescribes as to how the seniority to be drawn by applying the said Rules, ascertain the roster point for the three different categories of promotees and direct recruits and carry out the said exercise from 31.3.2003."
(a) wherein the Hon'ble Apex Court, has, cast an inflexible mandate, upon, this Court, to, apply the afore Rule 13, strictly in consonance, with, the verdict of the Hon'ble Apex Court, rendered in a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, to, hence for therefrom, it making determination(s), of, the inter se seniority, of, the inductees, into, the rank or post of Addl.
District Judge(s)/District Judge(s), and, who become drawn thereinto, from, the afore contemplated streams or channels. The inviolability of the afore imperative diktat, as afore stated, has been acquiesced, to be breached, in, the afore report, of, Hon'ble Judges Committee, and, when rather in pursuance thereto, the other Two Hon'ble Judges Committee of this Court, comprising Hon'ble Mr. Justice Sandeep Sharma, J., and, Hon'ble Mr. Justice Vivek Singh Thakur, J., has, in completest deference thereto, hence, made anad nauseam prescription, for, determining or ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 105 settling the inter se seniority, of, the inductees, to, the posts of Addl.
District Judge(s)/District Judge(s), (i) whether appointed, from, the direct .
recruits, (ii) or from amongst the Civil Judges (Senior Division), (iii) besides from the category(ies) appertaining, to, the Limited Competitive Examination, (iv) thereupon, the afore report, of, the abovesaid committee, does warrant, qua hence the deepest deference being meted thereto.
11. The acceptance, by, one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), of, the submission addressed, by Mr. R.L. Sood, learned Senior Counsel, for, the private respondent, that, for want of further successful challenges, being made by the petitioners, vis-a-vis, the judgment recorded, upon, CWP No. 61 of 1999, (a) and, also the further acceptance, by one of us ( Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), of, a further submission addressed, by the afore counsel,
(b) that, with the rejected representations made, in consequence thereto, also remaining unsuccessfully unchallenged, or remaining unchallenged, hence, by the petitioners, thereupon, they render themselves rather guilty of vices, of, delay and laches, and, also hence the concomitant stain, of, acquiescence(s), permeating the writ ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 106 petition(s), (c) necessarily also cannot become countenanced, by, the undersigned, as, the afore verdict was made prior, to, the verdict recorded by the Hon'ble Apex Court, in, a case titled, as, All India .
Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, (i) and also was rendered prior to the consequent therewith hence drawn rather the apposite hereat validly hence operating Rule 13, rule whereof does extantly govern(s), and, regulate(s), the, determination(s), of, inter se seniority, of, various contemplated inductees, into, the, rank of Addl. District Judge(s)/District Judge(s), and, who become drawn, from, various streams or channels. Moreover, also when, any deviation from the afore, are, condoned upto 31.03.2003. (ii) Emphasisingly also, whereas, the afore verdict, and, consequent therewith drawn Rule 13, does reiteratedly constitute, the, solitary parameter, and, also the governing regimen, for, the contentious purpose. Moreover, any rejection(s), of, the apposite representations, as, made by the petitioner, hence, by the High Court, on its administrative side, also subsequent to the decision, rendered in All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, is also both an unworthy, and, also an inefficacious ground, for, effacing ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 107 the binding, and, conclusive diktat, of, law, as, recorded by the Hion'ble Apex Court, in, the afore case, and, nor also can either blunt or reduce .
the vigour, of, the apposite Rule 13, as, has been incorporated, in, the H.P. Judicial Services Rules, hence, in pursuance to the decision, of, the Hon'ble Apex Court, as, rendered, in, the afore case.
12. One of us (Hon'ble Mr. Justice D.C. Chaudhary, J.) has strenuously emphasised, upon, the factum qua with both the writ petitioners or one of them, in, contemporaneity, vis-a-vis, their induction into service, and, of, the private respondents, rather being not borne, in, the cadre of District Judge/Additional District Judge, hence, theirs being barred, to, at this stage, hence, stake any claim, for, theirs securing, a, rank in the seniority list, rather above the private respondents, (a) especially in contemporaneity, vis-a-vis, the, induction(s) into service, of, the private respondents. However, the afore submission is also unworthy, for acceptance, (b) as, the apt suitable aspirants, vis-a-vis, the contentious post of judicial officers, are those, who were to be legitimately drawn, from, the stream or feeder channel of Civil Judges (Senior Division), for, hence, their claim, for, promotion thereto, being considered, at, the requisite phase, by the High Court, (c) whereas, when ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 108 their valid induction thereinto, rather become acquiesced, to, be untenably substituted, by the private respondents, hence, in acquiesced .
detraction, and, also in transgression, of, the mandate, of, the Hon'ble Apex Court, as, rendered in a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and, besides also, obviously, upon, the afore alluded hence acquiesced breach of Rule 13, as, became promulgated, in consonance therewith, (d) whereas, they were necessarily available, for induction/promotion, to the post of District Judge/Additional District Judge, (e) and, who, as explicitly echoed, in, the report of the Hon'ble Judges Committee, rather were untenably declined, their right for being considered for promotion, vis-
a-vis, the, apposite promotional post(s). Since the afore declinings, are not grooved, in any further reason, qua theirs being either unsuitable, for, promotion, to, the rank of District Judge/Additional District Judge, given theirs thereat facing proceedings, of, mis-conduct (f) or theirs being otherwise unsuitable or theirs not passing any prescribed suitability test, for, the relevant purpose nor when the High Court, in its reply, hence, projects any further reason, qua, hence, any dire exigencies, of, service or for any other scribed well reasoned circumstances, their ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 109 non induction, to, the promotional post, of, District Judge/Additional District Judge, rather becoming necessitated, (g) thereupon, the non .
consideration, of the afore contemplated stream, of, valid inductees, as, Additional District Judge/District Judge, or their non consideration, for, promotion thereinto, is, wholly impermissible, and, also is arbitrary, (h) rather the seniority list, as, drawn by the Hon'ble Judges Committee, hence, in consonance with the expostulation of law, declared in All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and also in consonance with Rule 13, as, became drawn in concurrence therewith, is enjoined to be revered. (I) Preeminently also for, the preeminent factum, qua, hence only thereupon, the dilution, of, the, apposite Rule hence extantly governing, the, contentious inter se seniority, of, the writ petitioners, and, of the private respondents, and, encapsulating, the, trite canon, vis-a-vis, throughouts rather rigorous adoption(s), by the High Court(s), rather for, the afore requisite purpose, hence the, norm of "Post Based Roster", than, the acquiesced invalidly adopted norm, inasmuch, as, " Vacancy Based Roster" by the High Courts, hence, would become aptly precluded.
::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 11013. On anvil of the H.P. Judicial Officers' Association, rather unconditionally, withdrawing on 4.11.2016, CWP No.696 of 2010, as also, .
with Writ Petition(C) No.532 of 2009 becoming withdrawn, on 18.03.2010, despite, an order being recorded, on, 14.7.2016, by the Hon'ble Apex Court, as, embodied in Annexure R-3/F, that, the parties be relegated, to, work out their remedy, in, the said writ petition, and, also, to, await the outcome, of, the said writ petition, (i) thereupon, also, on anvil of the writ petitioners herein, not joining, in the array of petitioner, hence all the aggrieved officers concerned, who had become earlier arrayed, through, the H.P. Judicial Officers' Association, in, the afore CWPs, rather instituted by the latter, and, CWPS whereof, stood unconditionally withdrawn, hence, Hon'ble Mr. Justice Dharam Chand Chaudhary, J., has concluded, (a) that, with purportedly similarly situate, and, identically aggrieved, vis-a-vis, the, petitioners herein hence, accepting the drawing, of, the gradation list(s) concerned, (b) thereupon, it begetting the apt corollary, vis-a-vis, the afore visible acquiescence, as, arose, from, the petitioners omitting to, hence join them, along with them, in, the extant petition(s), (c) also making operational, the, estopping principles, of, waivers, and, abandonments, against, the writ ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 111 petitioners, and, the latters being concomitantly baulked, to, re-agitate a controversy, rather acquiesced, by the H.P. Judicial Officers' Association, .
as evident, from, the H.P. Judicial Officers' Association, unconditionally withdrawing CWP No. 696 of 2010, to be finally, and, conclusively, hence earlier rested. However, the, effects, of, the afore estopping inference(s), of, acquiescence or waivers, and, abandonments, as, hence become drawn, by one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), does also rather hence become emaciated, vis-a-vis, its vigour, (d) inasmuch as, the verdict of the Hon'ble Apex Court, as, rendered in a case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, is, a judgment in rem, hence within, the, domain, of, the trite postulations, as, are borne, in, relevant paragraphs No. 21 to 23, of, a decision of the Hon'ble Apex Court rendered, in, a case titled, as, State of Uttar Pradesh and others vs. Arvind Kumar Sribastava and others, reported in (2015)1 SSC, the, afore relevant paragraphs whereof, read as under:-
"21. Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons( Jaswant Singh Case,(2006) 11 SCC 464):
"13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge ::: Downloaded on - 12/03/2020 20:23:29 :::HCHP 112 the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion .
in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam.
Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"
22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 113 did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as .
acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.
23. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancelleation orders till the year 1996, i.e. for a period of 9 ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 114 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The .
earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above."
wherein, a, candid expostulation of law occurs, vis-a-vis, (i) that upon, a, particular set of employees, being, accorded relief, by the court concerned, thereupon, all other identically, and, similarly situated therewith persons, also becoming enjoined to be treated alike therewith, rather through, theirs being extended similar benefits; (ii) as otherwise it would tantamount, to, discrimination, and, would be violative of Article 14, of, the Constitution of India. Though, delay and laches or acquiescences hence bar the slumbering litigants, to, raise claim(s), earlier reared and granted, vis-a-vis, the peers concerned, who rather successfully agitated them through courts, yet an exception thereto, is, also carved therein inasmuch, as qua, upon, any judgment pronounced by courts of law, being, a, judgment in rem, hence, with an intention, to, give benefit to all, (iii) thereupon, the estopping inference(s), of, delay and laches or of acquiescence, rather not working against other ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 115 purportedly identical, and, similarly situated persons, hence, along with their apposite peers, and, who subsequently claim an alike relief, vis-a-vis, the ones granted earlier qua their peers, preeminently rather the afore estopping vices .
becoming denuded, vis-a-vis, their vigour, and, force. Necessarily hence the fulcrum, of, the reasoning, assigned by one of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.) while concurring, with an alike therewith inference, as, became earlier drawn, by the learned Single Judge of this Court, qua, with the, purported immense procrastinated delay hereat, and, also with an immense hiatus elapsing, in, theirs challenging, the, purportedly settled gradation lists, as, became much earlier thereto hence drawn, hence, naturally attracting against the petitioners, the, estopping vices, of, delay, laches, and, acquiesces (a) and, therealongwith reiteratedly also the afore immediately prior hereto alluded, conclusion, as, drawn, by one of us (Hon'ble Mr. Justice Dharam Chand Chaurdhary, J.), rather becomes completely unhinged, (b) conspicuously, given, the verdict rendered by the Hon'ble Apex Court, in, a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, hence, for the reasons aforestated, holding a perennial immense inviolable legal command, and, clout, (c) and, also the rules drawn in consonance therewith also enjoying, an, alike perennial command, and, fiat, (d) and, when an acquiesced breach thereof, by, H.P. High Court, is, evident, upon, the afore allusion, as, made to the afore ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 116 report of the Hon'ble Judges Committee, as, drawn, in, the year 2010, (e) wherein, the rigor, of, the afore imperative judicial diktat, and, also of the .
apposite therewith rules, hence, being infringed, is, openly echoed, (f) thereupon, necessarily hence apart, from, the judgment (supra) rendered by the Hon'ble Apex Court, becoming a judgment in rem, rather also makes it amenable, to be cast, in a legal mold, rendering, it hence, to, become amenable, to, a, construction qua it throughout(s) imposing, an, exacting legal obligation, upon, the High Court, to, ensure the meteings, of, the completest deference thereto. Obviously, the afore valid perennial diktat, has been acquiesced, to, become breached. Moreover when the direction(s) rendered, by, the Hon'ble Apex Court, in, I.A. No.17 of 2011 in IA No.244 of 2009 and IA Nos. 1 & 2 in IA Nos. 17/2011 in IA No. 244/2009, and IANo.334/2014, IA Nos. 335, 336, 337, 338/2015 and IA No. 339 & 341/2016 in Writ Petition (Civil) No. 1022/1989, on 28.4.2016, as, aforestated, has also become revered, by the Hon'ble Two Judges' Committee, of, this Court, besides when the report, of, the Committee, is, drawn in consonance, with, the apt relevant Rule 13, thereupon, no irreverence thereto, can be brooked. Reiteratedly, thereat alone i.e. in the year 2016, hence, the contentious dispute, has been ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 117 given, a, complete quietus, and, not earlier, hence thereupon, also all the afore verdicts, are inapplicable hereat. Even though, one of us (Hon'ble .
Mr. Justice Dharam Chand Chaudhary) has alluded, to, the recorded minutes, as, made by the Full Court, in its meeting held in the year 2017, wherethrough, the report Annexure P-12, became disapprobated, on anvil, of, a Judgement, of, the Hon'ble Apex Court, rendered, in, a case titled as Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others, reported in (1990)2 SCC 715.
However, the afore drawn minutes, by the Full Court, wherethrough, it declined to accept Annexure P-12, also cannot weigh, with this Court, as, they are anchored, upon, a verdict, of, the Hon'ble Apex Court rendered, in , Direct Recruit Class II Engineering Officers' Association's case (supra), verdict whereof, for the reasons assigned hereinabove, is, grossly in applicable, vis-a-vis, the factual matrix prevailing hereat.
14. Emphasisingly, the, contra therewith rather hence decision, rendered, by, the Hon'ble Apex Court, in, a, case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, hence prescribing, the, adoption, of, a "Post Based Roster", rather than, of a "Vacancy Based Roster", for, all relevant purposes, is, the perennial ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 118 governing rule, for the contentious purpose, (a) whereas, the latter inappropriate mechanism becoming acquiesced, to become recoursed, .
by, this Court, for assigning, the, inter se seniority amongst, the, contesting litigants concerned, thereupon, adoption(s) thereof, become wholly unvindicable. Moreover, with the verdict supra constituting, a, judgment in rem, also bolsters an inference, qua, it purveying, a recurring, and, continuous cause(s), of, action, vis-a-vis, all the aggrieved concerned, to, ensure qua, the, mechanism contemplated therein, hence, for the requisite purpose, becoming completely recoursed, by, the High Court, (b) thereupon, upon, its evident acquiesced non-recoursing, and, also dehors, the earlier unsuccessful challenges, as, raised by the petitioners, through, the Judicial Officers' Association, rather not begetting against them, any, estopping inference(s), of, waivers, acquiescence, and, abandonments, (c) nor also the hereat belated challenge, vis-a-vis, the gradation lists, wherein, theirs names occur below, the private respondents, would adversarially work against them, merely on anvil of vices, of, delay, and, laches, hence purportedly operating against them. Immense fortification, to, the afore view, is, garnered, from, a, decision of the Hon'ble Apex Court, rendered, in, a ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 119 case titled as Fazlunbi vs. K. Khader Vali and another, reported in (1980)4 SCC 125, the relevant paragraphs No.7 to 10 whereof, stand .
extracted hereinafter:-
"7. We need not labour the point because this Court has already interpreted Section 127(3)(b) in Bai Tahira and no judge in India, except a larger bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio thereof. The language used is unmistakable, the logic at play is irresistible, the conclusion reached is inescapable, the application of the law as expounded there is an easy task. And yet, the Division Bench, if we may with respect say so, has, by the fine art of skirting the real reasoning laid down 'unlaw' in the face of the law in Bai Tahira which is hardly a service and surely a mischief, unintended by the Court may be, but embarrassing to the subordinate judiciary.
8. There is no warrant whatever for the High Court to reduce to a husk a decision of this Court by its doctrinal gloss. The learned judges observe, to our bafflement-
The decision in Bai Tahira v. Ali Hussain Fassalli, (supra) is to be confined only to the facts of that case. It falls to be distinguished for the following reasons : (i) the compromise of 1962 referred to therein was construed as not affecting the rights of a Muslim divorced wife in seeking to recover maintenance Under Section 125 Cr. P.C., (ii) what was considered to have been paid to the Muslim divorced wife was only the Mahar amount and not the maintenance amount payable for the Iddat period, (iii) The Mahar amount paid revealed a rate of interest which for a person residing in Bombay was held to be wholly inadequate to do duty for maintenance allowance, (iv) there was nothing in that case to show that the amount of Rs. 130/- paid towards Iddat represented the payment of a sufficient maintenance amount ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 120 for the three months period of Iddat and (v) the husband in that case did not raise any plea based on Section 127(3)(b) Cr. P.C.
9. Let us quote a few passages from this Court's ruling in Bai Tahira (supra) to express the untenability of the excuse not to follow the .
binding ratio:
Nor can Section 127 rescue the respondent, from his obligation, payment of mehar money, as a customary discharge, is within the cognizance of that provision. But what was the amount of mehar ? Rs. 5000/-, interest from which could not keep the woman's body and soul together for a day, even in that city where 40% of the population are reported to live on pavements, unless she was ready to sell her body and give up her soul The point must be clearly understood that the scheme of the complex of provisions in Chapter IX has a social purpose. III-used wives and desperate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets. This traumatic horror animates the amplitude of Section, 127. Where the husband, by customary payment at the time of divorce, has adequately provided for the divorce, a subsequent series of recurrent doles is contraindicated and the husband liberated. This is the teleological interpretation, the sociological decoding of the text of Section 127. The keynote though is adequacy of payment: which will take reasonable care of her maintenance.
The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate the rate unless it is a reasonable substitute.
The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of the statutory project can secure validation if the court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorcees should not derive a double benefit. If the payment by any mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order Under Section 125 not mathematically but fairly-then Section 127(3)(b) ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 121 subserves the goal and relieves the obliger, not pro tanto but wholly. The purpose of the payment 'under any customary or personal law' must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of Section .
127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum so paid and is potential as provision for maintenance to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful. The proposition, therefore, is that no husband can claim Under Section 127(3)(b) absolution from his obligation Under Section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance.
9. Granville Williams in his "Learning the Law" (pp. 77-78) gives one of the reasons persuading judges to distinguish precedents is "that the earlier decision is altogether unpalatable to the court in the later case, so that the latter court wishes) to interpret it as narrowly as possible".
The same learned author notes that some judges may "in extreme and unusual circumstances, be apt to seize on almost any factual difference between this previous case and the case before him in order to arrive at a different decision. Some precedents are continually left on the shelf in this way, as a wag observed, they become very "distinguished". The limit of the process is reached when a judge says that the precedent is an authority only "on its actual facts".
We need hardly say that these devices are not permissible for the High Courts when decisions of the Supreme Court are cited before them not merely because of the jurisprudence of precedents, but because of the imperatives of Article 141."
(i) wherein a trite principle of law stands expounded, vis-a-vis, verdicts rendered, by the Hon'ble Apex Court, being unamenable, for, being ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 122 departed from, by the High Courts, hence, in tandem therewith, the, acquiesced departure(s), from, the verdict, of, the Hon'ble Apex Court rendered in All India Judges' Association & Ors vs. Union of India, .
reported in (2002)4 SCC 247, and, also from, the, in consonance therewith Rule 13, borne in the H.P. Judicial Rules, can neither be brooked nor can be countenanced, irrespective, of any purported delay, and, laches, arising from any belated challenges, being made by the writ petitioners, vis-a-vis, the gradation list(s) concerned, wherein, their names occur, below, the names, of, the private respondents.
15. One of us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.) has also expressed, a, view, that, since subsequent to 2010, the, stream or feeder category of Civil Judges (Senior Division), became compensated rather for earlier purported errors or departures, from, the verdict, of, the Hon'ble Apex Court rendered in a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and, also from the consonant therewith incorporated Rule 13,
(i) inasmuch, as their services became regularised, from their hitherto adhoc basis service(s), as, Presiding Officer, Fast Track Court, hence, into/as, Addl. District Judges/District Judges, (ii) whereupon, with the ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 123 afore candid wrong(s) or error(s), if any, arising from depatures, if any, from, the verdict of the Hon'ble Apex Court in case supra, becoming .
undone, (iii) thereupon, the writ petitioners rather not holding any valid surviving, and, subsisting grievance, and, the verdict recorded, by, the learned Single Judge, being, well merited, and, warranting vindication.
However, for fathoming, the, vigour, of, the afore view expressed, by, one, of, us (Hon'ble Mr. Justice Dharam Chand Chaudhary), the undersigned, had, elicited the records appertaining, to the induction into service, of, Judicial Officers or those who become drawn from the stream, of, Civil Judges (Senior Division), (iv) and, has noticed, that, two Fast Track Courts, hence, on an adhoc basis, had come to be created in the year 2003, (v) and, also, a, notification in the afore regard was issued, on, 16.08.2003/6.8.2003, (vi) and, thereafter, through, the recorded minutes of the Full Court, held, on, 29.8.2003, certain judicial officers, holding the rank of the Civil Judge (Senior Division), were, appointed, as, Presiding Officer(s) (Fast Track Court), hence, on, an adhoc basis.
However subsequently, through, a notification issued, by the Government of Himachal Pradesh, on 30th March, 2013, wherethrough, the hitherto adhoc Fast Track Courts, became converted into permanent ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 124 courts, of, Additional District and Sessions Judges, (vii) hence, in pursuance thereto, through, the, recorded minutes of the Hon'ble .
Judges Committee, the, hitherto adhoc services, of, the judicial officers, as, became drawn, from, the stream or channel, of, Civil Judges (Senior Divisions), hence were declared to be regularised, as, District Judges/Additional District Judges. However, since 2003 upto 2013, all the afore judicial officers, as, become drawn, from, the stream/channel of Civil Judges (Senior Division), rather become continued to be reflected, as holding, the, posts concerned, merely on an adhoc basis,
(viii) and, conspicuously since 2003, and, upto 2013, all, the afore adhoc posts of Presiding Officers, of, Fast Track Courts, were not en-cadred post(s), rather throughout, the afore period, hence, were ex-cadred post(s). Hence, the, sequel thereof, is, that, a, 34 point roster, was applicable, hence, with all its absolutest clout, and, command, (ix) only vis-a-vis, the en-cadred posts of Additional District Judge(s)/District Judge(s), and, not vis-a-vis, the apposite ex-cadred posts, (x) besides, the, further corollary thereof, is, qua when in commensuration, with, the, canonised 34 point roster, hence, operative upto 2013, whereat the hitherto afore ex-cadred posts, were en-cadred , rather thereupto, only ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 125 the, co-equal thereto hence en-cadred posts, became available, for, operating thereons rather the commensurate thereto, number(s), of, .
roster points, for, therethroughs, hence, determining, the validities, of, all the apposite contentious inductions, conspicuously at the apposite disputed phase(s), and, also for, concomitantly reckoning, the, contentious inter se seniority. In other words, the, operation, of, the 34 point roster, does solitarily, vis-a-vis, the compatible therewith encadred posts, rather becomes, the, governing or the apposite regulating parameter. Consequently, only after the encadrement hence after 2013, the hitherto adhoc posts, of, Presiding Officer, Fast Track Courts, into, permanent posts, of Additional District and Sessions Judges, the working, of, a 34 point roster, would halt, and, not earlier, (xi) conspicuously nor when the apposite regularizations were not given any retrospective effects, nor also when any concomitant restrospectively operating additions, vis-a-vis, the roster point(s), were hence made through validly made rule(s). Necessarily, upon, increase, in, the strength, of, the apposite cadre hence after 2013, also, the requisite rules, hence, require/required, an, amendment, if, not already made.
::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 12616. Moreover, "the effect of the acquiescence", as, made by the Hon'ble Judges Committee, in the report drawn, in the year 2010, also .
has the necessary sequeling effect, especially, and, inasmuch, as, despite, the officers, hence manning the temporary Fast Track Courts, merely, on an adhoc basis, rather since 2004, and, upto 2010, and also despite, the afore ex-cadre posts, being donned, by the officers drawn, from, the, stream, of, Civil Judges (Senior Division), yet the Hon'ble Judges Committee, rather propounding, a, candid view that there still exist breaches or departures, from, the verdict of the Hon'ble Apex Court rendered, in, a case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, (a) "is, qua hence," the High Court, acquiescing, to, the operation, of, a 34 point roster, vis-a-vis, the apposite encadred posts, and, not qua ex-cadre posts. Reiteratedly, the afore acquiescence also obviously estops, the, High Court, to, contend qua the afore adhoc posts, existing prior to 2013, becoming unamenable or baulking the play(s), of, a 34 point roster vis-a-vis, the thereupto i.e. from 31.3.2003 upto 2013, hence, the co-equal thereto rather en-cadred posts. Emphasisingly, hence, also the afore expressed view, by one, of, us( Hon'ble Mr. Justice Dharam Chand Chaudhary, J.) ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 127 becomes benumbed, and, also become blunted, vis-a-vis, its vigour, if any, and, nor it can be befittingly concluded, that, the afore purported .
compensatory measures, hence, mitigate the grievance(s), of, the writ petitioners.
17. Nowat, the preeminent reason, which prevail(s), upon, the undersigned to validate, the, report, of, Hon'ble Judges Committee, report borne in Annexure P-12, is, grooved in (a) the verdict of the Hon'ble Apex Court rendered in a case titled, as, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, holding perennial force, and, applicability, and, also, its purveying a continuous, and, also, a, repeated cause, of, action to the aggrieved concerned. (b) the perenniality, of, the verdict, of, the Hon'ble Apex Court, as, rendered in the afore case, necessarily can not be deemed, to, ever slumber or become redundant, and, nor also any purported, slumbering(s), and, acquiescences, or delays and laches, if any, on the part, of, the writ petitioners, also cannot concomitantly, render halted, the, ever awakened or never slumbering, rather, the absolutest command, and, diktat of the expostulation, of, law, as, pronounced, in, the verdict rendered by the Hon'ble Apex Court, in, a case titled as All ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 128 India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247. Moreso, when it has become acquiesced, by, the .
afore alluded report, of, Hon'ble Judges' Committee, to be untenably departed from.
18. Much emphasis has been laid, upon, the factum, that, with the purported breaking down, of, the relevant, norm, of "Post Based Roster" by the High Court, for, determining, the inter se seniority, of, the inductees, into service, as, District Judge/Additional District Judge, and, who became drawn, from, the contemplated streams/channels, and, in the per centum contemplated therein, rather becoming condoned, (a) hence, in, compliance, vis-a-vis, the verdict, of, the Hon'ble Apex Court, as, become cited in the report made, by, the Hon'ble Judges', in their meeting convened, in, the year 2016, minutes whereof also became placed, before the Hon'ble Apex Court. The further argument, which, has been strived to be erected thereon, is, hence the High Court, rather concomitantly, accepting, the, validity of the application hereat, of, the verdict supra, of, the Hon'ble Apex Court, in its, meeting held, in, the year 2016. Furthermore, it is also canvassed, that, in consonance therewith, there cannot, yet, be any adoption, of, the principle of ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 129 "pushing down". However, even the afore submission, apart from, the hitherto assigned reason, does, further falter and also stagger(s), (i) as, .
the apt expostulated therewithin hence special circumstance(s), for, hence, validating, the, departing(s) therefrom, remain unpropounded, in the reply furnished, to, the writ petition, by the High Court, (ii) besides, the, stark factum that in case the High Court, had deemed it fit, to, mete, the, completest condoning compliance(s) thereto, or to derive, the fullest vigour therefrom, (iii) thereupon, it became both imperative and incumbent, upon, the High Court, to apart, from, purveying, the afore drawn apposite minutes, before the Hon'ble Apex Court, to also ensure, that, submission(s) inconsonance therewith, besides also a concurrent therewith order hence occurred, in, the order(s) rendered, on, 28.4.2016, by the Apex Court, upon, I.A. No.17 of 2011 in IA No.244 of 2009, and, IA Nos. 1 & 2 in IA Nos. 17/2011 in IA NO. 244/2009, and, IA No.334/2014, IA Nos. 335, 336, 337, 338/2015, and, IA No. 339 & 341/2016 instituted in Writ Petition (Civil) No. 1022/1989 or in the subsequent thereto proceedings embarked, upon, by the Hon'ble Apex Court. However, neither the afore submission exists, in, the order rendered by the Hon'ble Apex Court, nor any condonation or validation, of, the afore ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 130 submission(s), is, echoed therein, nor in any other order(s) rendered, by, the Hon'ble Apex Court, (a) rather with the Hon'ble Apex Court, making .
an order, upon, the High Court, to, retrospectively adopt, the, 34 point roster, hence, with its absolutest vigour, rather from 31.3.2003, does bringforth, a, conclusion, that, the doctrine of "pushing down", has become countenanced, by the Hon'ble Apex Court, and, also hence, a further inference, is, drawable qua breaches, if any, vis-a-vis, the vindicable adoptable norms, of, a r "Post based Roster", are, uncondonable, as any condonation thereof, would beget breaches, of, the inflexible mandate, of, Hon'ble Apex Court, as, rendered in a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, and, also, vis-a-vis, the afore orders pronounced, in the afore I.As. The afore conclusion gathers strength, from, the striking factum qua rather the afore orders, as, made, upon, the afore I.As, being not strived to be reviewed, upon, anvil, of, the citations, relied, upon, by the Hon'ble Full Court, in, its minutes, hence, drawn, in the year 2016, (a) whereupon, it becomes necessary to conclude, vis-a-vis, the High Court abandoning, the afore ground, and, also its accepting, the afore diktat, as carried, in the orders made in the ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 131 afore I.As , orders whereof became complied with, by the Hon'ble Judges Committee. Paramountly, also the rule or norm, as, propounded, .
in the minutes, of, the meeting of the Full Court, held in the year 2016, is, applicable only, vis-a-vis, statutory rules, however, it is not applicable, vis-a-vis, the hereat finally, conclusively or completely enforceable verdict, as, became rendered by the Hon'ble Apex Court, in, All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247, nor is applicable, vis-a-vis, the order rendered, on, 28.4.2016, by, the, Apex Court, upon, I.A. No.17 of 2011, in, IA No.244 of 2009, and, IA Nos. 1 & 2, in, IA Nos. 17/2011, in, IA NO. 244/2009, and, IA No.334/2014, IA Nos. 335, 336, 337, 338/2015 and IA No. 339 & 341/2016, instituted, in Writ Petition (Civil) No. 1022/1989, as, thereupon the law declared, by, the Hon'ble Apex Court, would become untenably breached. Contrarily, the afore condonatory reliances anvilled, upon, the verdict supra are deemed, to be waived or abandoned, with, a concomitant estoppel qua therewith hence working against the High Court. Paramountly, for, all afore reasons, all the afore strived condonations, of, all the afore acquiesced departures, is, also deemed, to, be not accepted, by, the Hon'ble Apex Court.
::: Downloaded on - 12/03/2020 20:23:30 :::HCHP 13219. For the reasons assigned hereinabove, both the LPAs are allowed, and, the judgment of the learned Single Judge, is, set aside.
.
Consequently, the respondent concerned is directed to follow, the, post based roster w.e.f. 31.3.2003, for, preparing the seniority list, in accordance, with, the report of the Hon'ble Judges Committee, prepared, in the month of September, 2018 hence in accordance with the mandate, of, the Hon'ble Apex Court, rendered, in, a case titled as All India Judges' Association & Ors vs. Union of India, reported in (2002)4 SCC 247. However, it is clarified, that, induction into service from the category, of, legal practitioners prior to 31st March, 2003, shall remain unaffected, by, the report of the Hon'ble Judges' committee. All pending applications also stand disposed of.
(Sureshwar Thakur) Judge.
11th March, 2020.
(jai) ::: Downloaded on - 12/03/2020 20:23:30 :::HCHP