Sh. Shamsher Singh Kanwar and Another vs The Union of India (UOI) and Others

R.S. Pathak C.J.

The Petitioners were originally Subordinate Judges in the Punjab Civil Service (Judicial Branch). On the Re-organisation of the State of Punjab and the transfer of certain territories to the Union Territory of Himachal Pradesh, the Petitioners were allotted to Himachal Pradesh with effect from November 1, 1966. Section 82 of the Punjab Re-organisation Act confers powers upon the Central Government to carry out the division and integration of the services among the successor States, and proceedings were taken for accomplishing that purpose. The Central Government issued a letter dated February 14, 1967, detailing the basis on which the equation of posts and the inter se seniority of the allotted and existing officers would be determined with reference to the "appointed day" that is November 1, 1966. On June 18, 1969, the Himachal Pradesh Advisory Committee, constituted u/s 82(4) of the Punjab Re-organisation Act, approved the application of what was known as the K.L.M. Formula by means of which for the purpose of determining inter se seniority between officers of integrated units the longer period of a junior officer was to be assigned to the senior officer of the same unit who had a shorter period of service.

It appears that on July 18, 1969, a provisional joint seniority list of the Subordinate Judges in Himachal Pradesh was circulated among the officers concerned. As apparently it was not prepared on the basis of the K.L.M. formula, it was superseded by another provisional joint seniority list, prepared in August, 1969 which was circulated on September 30, 1969. The officers concerned were invited to send their objections to the place assigned to them in the seniority list by October 15, 1969, to the Registry of the Delhi High Court, which at that time exercised jurisdiction over the Union Territory of Himachal Pradesh. They were also informed that if they wished to make oral representations they would be given a hearing by a Committee of the Judges of the High Court on October 18, 1969. The relevant portion of the provisional list read as follows:

Joint provisional seniority list of officers according of the K.L.M. formula as on 1-11-1966

Sl. Name Date of Deemed date No. appointment of appointment 9. Shri Kedarishwar 12-9-1961 19-10-1956 10.

Sl. Name Date of Deemed date No. appointment of appointment 11. Shri Shamsher Singh 12-5-1959 12-5-1959 12. 13. 14. Shri V.P. Bhatnagar 29-6-1960 29-6-1960 15. Shri N.S. Shandil 19-10-1956 12-9-1961

Several judicial officers submitted representations against the provisional joint seniority list. The Respondent, Shri N.S. Shandil, represented against the position given to him in the list. He contended that he should be assigned seniority on the basis of the actual date of his appointment. The Petitioner, Shri Shamsher Singh, represented against the seniority assigned to the Respondent Shri Kedarishwar contending that he should have been shown senior to the said Respondent. He made no representation against the seniority assigned to Shri Shandil. The Petitioner, Shri V.P. Bhatnagar, made no representation at all. The provisional joint seniority list and the representations were considered by a Committee of three Judges of the High Court and they gave an oral hearing to the judicial officers, including Shri Shamsher Singh. On November 17, 1969, the Committee of Judges drew up their report, and recommended that the representation of Shri Shandil should be allowed and the representation of Shri Shamsher Singh should be rejected. In other words, the Committee was of opinion that while Shri Kedarishwar should remain at Serial No. 9, Shri Shandil should be moved up to Serial No. 10. That would make both the officers senior to Shri Shamsher Singh and Shri Bhatnagar. The Committee submitted its report to the High Court, and the High Court in a Full Court Meeting adopted the report of the Committee and forwarded its recommendations accordingly to the Advisory Committee. The Advisory Committee considered the provisional joint seniority list and after taking into account the representations made by the judicial officers as well as the recommendations of the High Court, it formulated its recommendations and submitted them to the Central Government. The Central Government then finalised the joint seniority list of Subordinate Judges. The final list was circulated to all the officers concerned in October and November, 1970. Shri Kedarishwar and Shri Shandil were placed senior to the Petitioners in the list. The Petitioners now assail the validity of the list so far as it shows them junior to those Respondents.

The Petitioners have also challenged the promotion of Shri Kedarishwar and Shri Shandil to the cadre of District/Additional District and Sessions Judges. Shri Kedarishwar and Shri Shandil were appointed to that cadre by notifications dated April 8, 1969 and May 18, 1971 respectively. The Petitioners say that they were promoted to that cadre on the wrongful assumption that they were senior to the Petitioners. The Petitioners contend that as they were not considered for promotion at the time, Articles Hand 16 of the Constitution have been violated.

At the outset, Shri S. Malhotra appearing for Shri Kedarishwar, has raised a preliminary objection. He urged that the Petitioners are guilty of laches. He points out that the writ petition was filed on May 10, 1972, long after the Petitioners came to know of the joint seniority list and of the orders appointing Shri Kedarishwar and Shri Shandil to the cadre of District/Additional District and Sessions Judges. It is also urged that the position of those Respondents has changed since the joint seniority list was finalised and grave prejudice would be occasioned to them if the list was now disturbed. Moreover, it is said, over the passage of time since those Respondents were promoted to the higher judicial cadre they have decided a large number of civil and criminal cases and it would gravely prejudice the public good to interfere now with their promotion to that cadre on the basis of an alleged irregularity.

The doctrine of laches is founded in equity. It provides a defence in equity and has existed as such since the beginning of equity. It cannot be invoked where the statute prescribes a period of limitation. In contrast with a statute of limitation, equity does not fix a specific period but considers the circumstances of each case. The doctrine of laches is based on the injustice which might result from the enforcement of long neglected rights, the difficulty, if not the impossibility, of ascertaining the truth of the matters in controversy and doing justice between the parties, and on grounds of public policy, its aim being the discouragement for the peace and repose of society, of stale and antiquated demands and it is based on the maxims. Nothing can call equity into activity but conscience, good faith, and diligence. Equity aids the vigilant not those who slumber on their rights. He who seeks equity must do equity, and, he who comes into equity must come with clean hands. Since laches is an equitable doctrine, its application is controlled by equitable considerations and is addressed to the sound discretion of the court. In determining whether in any particular case there are laches, consideration must be given to the element of laches, and to various incidental matters, notably the relation of the party charged with laches to the right in controversy, the character of the evidence by which Plaintiff''s right is sought to be established, the nature of the right asserted and the relief asked, and the nature of the proceeding resorted to Corpus Juris Secundum, Vol. 30-A para 115 pp. 31.43, To determine whether the delay is such as to amount to laches, it is necessary to examine whether there has been:

(1) acquiescence on the part of the Petitioner;

(2) any change of position which has occurred on the part of the Respondent.

In Lindsay Petroleum Co. v. Hurd (1874) 5 P.C. 221 , Lord Selborne observed that delay was material "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 to be afterwards asserted." And further, "Two circumstances always important in such cases are, the length of the delay and the nature of the acts 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." See also Erlanger v. New Sombrero Phosphate Co. at 1279. (1878) 3 AC 1218 (HL); Re Sharpe Re Bennett Masonic and General Life Assurance Co. v. Sharpe (1892) 1 Ch. 154 ; Rouchefocauld v. Boustead (1897) 1 Ch. 196 .

The mere circumstance of delay, while it is an element of laches, docs not of itself constitute laches. Injury or prejudice resulting from the granting of the relief of the adverse party is also an important element of the defence of laches. Accordingly, if in the course of an inexcusable delay in the assertion of a right changes occur in the subject matter to the transaction in suit or in the relative positions of the parties thereto, as a result of which it is impossible to place the party in status quo, and the enforcement of the right would work inequity, relief will be denied because of laches.

It is contended for the Petitioners that once a writ petition has been admitted the plea of laches becomes irrelevant. It is submitted that if the plea of laches is allowed to be raised and to prevail at the final hearing of a writ petition, and the writ petition has been pending in Court for a long time, it could put the Petitioner beyond limitation for pursuing the alternative remedy by way of suit. We are referred to General Manager, U.P. Govt. Roadways, Bareilly Region and Another Vs. State Transport Appellate Tribunal, Uttar Pradesh and Others, and Ahmad Hassan v. The Chief Commissioner for Manipur AIR 1966 Man 18 . In the first case a learned single Judge of the Allahabad High Court held that where the Bench while admitting the writ petition was satisfied that the delay had been explained and the Petitioners were not guilty of laches it was not open to the Respondents to raise the plea of laches. In the second case, the Court appears to have condoned the delay at the stage of admission of the writ petition. Both cases are distinguishable. In the case before us there is nothing to show that the question of laches was considered when the writ petition was filed and that the learned Judges while admitting the writ petition either took the view that the Petitioners were not guilty of laches, or, indeed, condoned the laches.

Moreover, I entertain serious doubt whether a decision by the Court on the question of laches at the time of admitting a writ petition can bar a Respondent, who was not heard in the matter at that stage, from raising the plea of laches during the final hearing of the writ petition. There are cases where a Respondent can place before the Court facts showing that the explanation set out in the writ petition for the delay is false and cannot be accepted. It would be a denial of justice to refuse him the right to plead that the writ petition should fail on the ground of the Petitioner''s laches.

As regards the contention of the Petitioners that if the plea of laches is allowed to be raised at the stage of final hearing, the Petitioner could be deprived of his right of relief by way of suit because of the lapse of time, it seems to me that when a Petitioner files his writ petition he must be deemed to have made a choice between adopting that remedy or filing a suit. Having made that choice, it is not open to him to turn round later and complain that because of the pendency of the writ petition over a period of time, limitation has stepped in and deprived him of his remedy by way of suit.

The Petitioners then urge that the joint seniority list and the impugned promotions of Respondents Nos. 9 and 11 bring about a continuing wrong, and therefore no question of laches can arise. Now, the joint seniority list declared the relative seniority of the Subordinate Judges when it was circulated in November 1970. The declaration was a definite and complete act, fixed in point of time. It was not a continuing act. Unlike an injunction, for example, which is in continuous operation and acts de die in diem, from day to day, an act fixed in point of time operates with respect to that point of time. The joint seniority list took effect as on the date on which it was published. Whatever was done subsequently pursuant to the joint seniority list was done merely in consequence of it. And the consequences of an act must be distinguished from the act itself. What is done consequent to the act is a thing apart from it. The concept of "a continuing wrong" was considered by the Supreme Court in Balkrishna Savalram Pujari and Others Vs. Shree Dnyaneshwar Maharaj Sansthan and Others, . The Court said:

It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.

(Emphasis mine).

In that case, the Supreme Court held that where a wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster. A Full Bench of the Lahore High Court in Khair Mohd. Khan v. Mst. Jannat AIR 1940 Lah 359, while construing Section 23 of the Limitation Act observed:

In considering whether the particular act complained of constitutes a ''continuing lwrong'' within the meaning of Section 23 for which the cause of action arises de die in diem it is necessary to keep in mind the distinction between an ''injury'' and the ''effects of that injury''. Where the injury complained of is complete on a certain date, there is no ''continuing wrong'' even though the damage caused by that injury might continue. In such a case the cause of action to the person injured arises, once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt by the aggrieved person on subsequent occasions, intermittently or even continuously, docs not make the injury a ''continuing wrong'' so as to give him a fresh cause of action on each such occasion....

Reference may also be made to Kuchibotha Kanakamma v. Tadepalli Ranga Rao AIR 1957 A.P. 419. I am of opinion that the joint seniority list, assuming it is invalid, does not represent a continuing wrong. The impugned promotions of Shri Kedarishwar and Shri Shandil are similarly complete acts, complete on the date when the promotions were notified, and for the same reason as are mentioned in respect of the joint seniority list they cannot also be said to represent a continuing wrong. Accordingly, this contention of the Petitioners is also rejected.

The next contention to consider on the facts of this case is whether there is an acceptable explanation for the delay in filing the writ petition.

In respect of the joint seniority list, it is clear, the writ petition has been filed more than one and a half years after the list was drawn up and circulated. And in respect of the promotions of Shri Kedarishwar and Shri Shandil to the cadre of District/Additional District and Sessions Judges, the writ petition has been filed more than three years after the notification dated April 8, 1969, promoting Shri Kedarishwar and one year after the notification dated May 18, 1971, promoting Shri Shandil.

The explanation tendered by the Petitioners for the delay in filing the writ petition is that a writ petition, A.J. Bhoil v. The Union of India C.P. No. 70 of 1970 derided on June 28, 1973, was pending in this Court at the time when the final joint seniority list of Subordinate Judges was issued and that both the seniority list of Subordinate judges as well as the K.L.M. formula were in question in that writ petition. Thereafter, in March 1971 a writ petition, H.D. Kainthla v. The Union of India C.W.P. No. 27 of 1971 decided on July 11, 1973, was filed praying for the quashing of the joint seniority list of Subordinate Judges. The Petitioners say that after the arguments in the former writ petition had concluded and while the arguments in the latter writ petition were being addressed they were seized with the apprehension that both the petitions were being heard without impleading all the persons on the seniority list who were interested and could be affected, and they felt that those petitions could not be disposed of without an adjudication on the seniority of the persons mentioned in the list.

Can it be said from this explanation that the Petitioners did not come to court earlier because they decided to wait for the outcome of the aforesaid two writ petitions? A consideration of the explanation, such as it is, discloses that it was only in May, 1972, that the Petitioners for the first time considered whether they should file a writ petition, when the hearing in Shri Bhoil''s writ petition had concluded and that of Shri Kainthla''s writ petition was going on. There is neither any allegation, nor indeed the slightest evidence whatever, that they considered the question of filing a writ petition much earlier when they came to know of the joint seniority list but refrained from doing because they felt that their rights would be protected by Shri Bhoil''s writ petition and Shri Kainthla''s writ petition. The explanation is significantly silent on the point. And there is no justification, I think, for adding words in the explanation where none exist. Upon the averment made by them, that upon the conclusion of Shri Bhoil''s writ petition and during the course of Shri Kainthla''s writ petition they came to realise the necessity of filing the present writ petition the only reasonable inference is that they were negligent in asserting their rights when they should have. Ever since October or November 1970, when they were informed of the final joint seniority list, they appear to have slept on their rights.

The validity of the explanation may be examined next in the light of what Shri Bhoil''s and Shri Kainthla''s writ petitions imported, for determining whether those writ petitions could at all be relevant.

Shri Bhoil''s writ petition was not concerned with challenging the joint seniority list of Subordinate Judges and the K.L.M. formula. Shri Bhoil was concerned with the promotion of Shri Kedarishwar and Shri T.R. Handa to the cadre of District/Additional District and Sessions Judges and his own reversion from that cadre. It was his case that he was senior to Shri Kedarishwar and Shri Handa in the joint seniority list of Subordinate Judges, and the validity of that list formed the very basis of his writ petition.

As regards Shri Kainthla''s writ petition, he challenged the seniority assigned to certain judicial officers, including the present Petitioners, in the joint seniority list of Subordinate Judges primarily on the ground that the equation between the posts held by judicial officers already serving in Himachal Pradesh and those held by judicial officers allotted from Punjab was invalid. His plea was that he should be placed senior to the present Petitioners. If relief was granted to him, his name would have been placed above that of the present Petitioners. If the writ petition was dismissed, he would remain junior to them. A decision on the controversy raised by Shri Kainthla could by no means be relevant to the controversy raised in the present writ petition, namely, whether the Petitioners were senior to Shri Kedarishwar and Shri Shandil. Shri Kainthla also contended that confirmed officers should be placed senior to unconfirmed officers, and invoked the K.L.M. formula for that purpose. In particular, he urged that the present Petitioner No. 2, Shri Bhatnagar, who was confirmed much later than him, should have been placed junior to him. Paragraph 13 of Shri Kainthla''s writ petition may be reproduced:

The method of arriving at "deemed date" is not intelligible and has been arbitrarily applied. K.L.M. formula works on confirmation concept, that confirmed employees being senior to unconfirmed ones, irrespective of the length of service. This seems to have been so applied in the case of Shri R.N. Aggarwal and Shri D.R. Dhamija (Serials 2 and 3 in the list of District Judges-- Annexure ''B1'' and serials 13 and 14 in the list of Sub Judges--Annexure ''B2''). This process has not however been followed in other cases and unconfirmed officers Nos. 5 and 8 are shown senior to confirmed officers. Officer at serial No. 15 was confirmed much later to the Petitioner and others, but he ranks higher in the joint seniority list.

Shri Bhatnagar was the officer at serial No. 15 in the list of Subordinate Judges. Therefore, so far as the K.L.M. formula was concerned, the only question in Shri Kainthla''s writ petition was whether it required confirmed officers to be placed senior to unconfirmed officers. In the present writ petition, that question does not arise. Here, the Petitioners have challenged the validity of the K.L.M, formula and, alternatively, they have assailed the modification of that formula in favour of Shri Shandil. Any decision in Shri Kainthla''s writ petition could have no bearing whatever on the claim now made by the Petitioners. It is difficult to accept that the Petitioners believed that they would benefit by the decision in Shri Kainthla''s writ petition. There was nothing in that writ petition which could have led them to expect that they would be placed senior to Shri Kedarishwar or Shri Shandil. The Petitioners were impleaded as Respondents in that writ petition and were served with notice of it. They are judicial officers with several years of experience and could be expected to know what the import of Shri Kainthla''s petition was.

As regards the orders dated April 8, 1969, and May 18, 1971, promoting Shri Kedarishwar and Shri Shandil respectively, there is not a word in the explanation indicating why they did not challenge: those orders earlier. The pendency of Shri Bhoil''s writ petition was wholly without relevance. Shri Bhoil assailed the promotion of Shri Kedarishwar solely on the ground that he was the senior of the two in the cadre of Subordinate Judges. Any decision on that controversy would have afforded no relief to the Petitioners, who were shown junior to Shri Kedarishwar as Subordinate Judges. As regards Shri Kainthla''s writ petition, the promotion of Shri Kedarishwar and Shri Shandil did not figure at all.

Accordingly, in my opinion, the explanation attempted by the Petitioners for the delay in filing the present writ petition is of no value and cannot be accepted.

The plea of laches may now be considered in the light of the reliefs claimed by the Petitioners and the grounds upon which they proceed.

The Petitioners have prayed for the quashing of the joint seniority list and of the appointment of Shri Kedarishwar and Shri Shandil to the higher judicial cadre. In effect, they pray for writs in the nature of mandamus and quo warranto.

It is now settled law that a petition for mandamus may be defeated by laches. Application for the writ should be made within a reasonable time after the alleged default or neglect of duty, and if not reasonably made, the delay may afford sufficient cause for its denial, particularly when the delay has been prejudicial to the rights of the Respondent, la determining what constitutes such unreasonable delay as will justify refusal of the writ, regard must be had to the facts and circumstances of each particular case to the character of relief demanded, and to the detriment, prejudice or injury, if any, to the Respondent, or other interested person, or to the public from the delay 30 Am. Jur. p. 65-66 para 312, See United States ex. rel. Aranl v. Lane 249 U.S. 367, 03 L.ed. 650, Chapman v. Douglas County 107 U.S. 348, 27 L.ed. 378.

While laches is an equity doctrine, it is also frequently applied to quo-warranto proceedings. The Court in quo-wananto will exercise its discretion to consider all the circumstances of the case, and if on a full view of these circumstances it appears clear that the public welfare not only would not be promoted, but that the reverse would be the result, and by reason of the lapse of time harm rather than good would result to the public interest the court will apply the doctrine of laches 44 Am. Jur. p. 132 para 63.

We may now consider how far the Petitioners'' case against the promotion of the judicial officers is affected by the plea of laches. In my opinion, an important issue is raised. Shri Kedarishwar was promoted to the higher judicial cadre on April 8, 1969, and Shri Shandil was promoted to that cadre on May 18, 1971. Since then those two judicial officers have been posted at various places as Additional District and Sessions judges and District and Sessions Judges, and during the passage of time they have decided numerous civil and criminal cases and passed judgments, decrees and orders. Their decisions have affected the civil rights of a large number of litigants, and on the basis of those decisions citizens have ordered their rights in respect of person and property and gone about their daily life. Their judgments in criminal cases may have resulted in accused persons suffering imprisonment or death or enjoying acquittal. There can be no stronger case for invoking the defence of laches than a case where the appointment or promotion of a judicial officer is challenged with considerable delay and long after the Petitioners came to know of it. To permit such a belated challenge would be to throw a pall of doubt and uncertainty over the several judgments, decrees and orders passed by the judicial officer through the long period of time his appointment or promotion remained unchallenged and to produce grave disquiet in the minds of those affected, and in the result to work serious injury to the public confidence which sustains the judicial system. It was a consideration such as this which apparently prompted the Supreme Court to point out in Jyoti Prokash Mitter Vs. Hon''ble Mr. Justice Himansu Kumar Bose, Chief Justice, High Court, Calcutta and Another, , where the Appellant, a Judge of the Calcutta High Court, complained that he had not been assigned any work while the dispute whether he had reached the age of super animation was pending:

In such a case, if the decision of the President goes against the date of birth given by the Appellant, a serious situation may arise because the cases which the said Judge might have determined in the meanwhile would have to be reheard, for the disability imposed by the Constitution when it provides that a Judge cannot act as a Judge after he attains the age of superannuation will inevitably introduce a constitutional invalidity in the decisions of the said Judge, and it is plain that it would be the duty of the Chief Justice to avoid such a complication.

(Emphasis mine).

In my opinion, a writ petition challenging the appointment of a judicial officer should be brought with the utmost expedition.

I am conscious of the doctrine, advocated by a school of juristic opinion, that the judicial acts and decisions of de faclo judicial officers cannot be questioned in a collateral proceeding, that when a judicial officer although not duly appointed to his office has been exercising the functions of that office under colure of title, his title and accordingly the validity of the acts done by him cannot be challenged in a collateral proceeding. But there is no clear statement of the law in the matter in this country, and different courts appear to have taken different views on the question. Indeed, it may be pointed out that when the Supreme Court in Chandra Mohan v. State of Uttar Pradesh AIR 1966 S.C. 1987, held that the appointments made to the higher judicial service under the U.P. Higher Judicial Service Rules were invalid, Parliament considered it necessary to amend the Constitution by inserting Article 233A validating the appointment as well as the judgments of those District Judges. It is also a matter for serious consideration whether a judicial officer''s decision cannot be quashed in a proceeding under Article 226 of the Constitution on the ground of want of title of the judicial authority. The observations of Denning L.J. in Barnard v. National Dock Labour Board (1953) 1 A.E.R. 1113 seems to show that it can. But whatever the position may be, there can be little doubt that a chaotic situation arises and in the result public confidence in the administration of justice is seriously disturbed. That mischief arises no doubt even if a few decisions are rendered by a judicial officer found subsequently to be without authority, but the mischief is seriously aggravated if he is adjudged to be without title to his office long after he has exercised the judicial functions of that office. In this context the observations of Lord Denman C.J. in R. v. Parry 20 (1846) 6 A.E. 822, are especially opposite that the "discretion as to the issuing of quo warranto information must be regulated by a regard to all the circumstances which attend the application and all the consequences likely to follow.

(Emphasis mine).

Upon this view, I am unable to share the opinion of my brother D.B. Lal that consideration of the Petitioners ''challenge to Shri Shandil''s promotion should be deferred by us until after the Central Government has decided whether the Petitioners arc entitled to the seniority they seek. That would not be before a period of time. If the view I take is correct that public interest and the public good require that a challenge to a judicial officers'' appointment or promotion should be made with the greatest expedition, to postpone consideration of that challenge would only increase the mischief if after still further delay it is found that the judicial officer had no right to the office held by him. The cause of action arose to the Petitioners when the impugned promotions were made, it could arise no later than that; and the interests of the Petitioners as well as of the administration of justice require the court to come to an expeditious disposal of this controversy raised by some judicial officers of the State whether the promotions made of certain other judicial officers arc invalid.

In the matter of issuing a writ in the nature of quo warranto, the discretion of the court would vary from case to case. In India, the Mysore High Court ILR 16 Mys. 1964 , considered a delay of four months inexcusable. In that case, a declaration that the Respondents were the successful candidates was made on June 20, 1960. A petition for quo warranto was filed on October 8, 1960. The delay was not satisfactorily explained. The petition was rejected. The High Court observed that an application for quo warranto has to be made with the utmost expedition, since the very object of the application is to remove a person who represents that he has the authority to hold a public office, when he has none. And in Surendra Mohan Patnaik Vs. Gopal Chandra Patnaik and Others, the Orissa High Court considered a period of six months as undue delay.

In the case of a judicial officer, who decides matters of life and death, of vital personal rights and serious property rights, whose decisions ordinarily take effect as soon as pronounced, a Petitioner must challenge his appointment soon after coming to know of it. In a petition invoking the writ jurisdiction of the court "the party aggrieved must", as Hidayatullah G.J. said in Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, "move the court at the earliest possible time and explain satisfactorily all semblance of delay."

Upon the aforesaid considerations, I am of opinion that the court should not permit the Petitioners to challenge the promotions of Shri Kedarishwar and Shri Shandil now at this late stage. Public policy and public interest will not permit a belated challenge. The plea of laches must prevail, so far as the promotion of Shri Kedarishwar is concerned, on the further ground that while the promotion took place on April 8, 1969, the present writ petition was filed more than three years later, on May 10, 1972. In State of Madhya Pradesh Vs. Bhailal Bhai and Others, by Hon. C.J, Hon. D.B., the Supreme Court laid down:

...where the delay is more than this period (the period of limitation) it will almost always be proper to hold that it is unreasonable.

There is still another ground upon which the Petitioners must be denied relief against the impugned promotions of Shri Kedarishwar and Shri Shandil. A Full Bench of this Court has unanimously held in H.D. Kainthla v. The State of Himachal Pradesh C.W.P. No. 158/1971 decided by Lal and Hon. C.R. Thakur JJ. on September 25, 1973, that promotion to the higher judicial cadre must proceed on the basis of merit, and that seniority is relevant only where the merit of two candidates is equal. In order to succeed, the Petitioners must show, at least prima facie, that if they were placed senior to Shri Kedarishwar and Shri Shandil they would have been preferred for promotion to the higher judicial cadre over those two judicial officers. They must show upon relevant data that on an appraisal of their comparative merit they could be found superior to the two judicial officers, or at least of equal merit so that the seniority claimed by them would have tilted the balance in their favour. It is well settled that: in a writ petition the High Court will not issue a writ unless the Court is satisfied that the grant of the writ will result in the probability of the Petitioner obtaining the relief expected by him. It is on this principle that a futile writ is not issued. It is this consideration also which determines whether the writ petition proceeds upon a mere technicality or is founded in the real and substantial expectation of actual relief consequent to the writ. In R. v. Cousins (1873) 8 Q.B. 216, the writ was refused because the Petitioner failed to show that the result of the election had in any way been affected, and the issue of the writ would not have been merely vexatious. Only because a reasonable doubt as to the legal validity of the impugned promotions is shown will not justify the grant of a writ. In the present case, the Petitioners have failed to place any material before us upon which it could be reasonably possible to hold that if they were assigned the seniority they claim Shri Kedarishwar and Shri Shandil would not have been promoted but they would have. Upon this ground also, the Petitioners'' challenge to the promotion of those two judicial officers must fail.

The contention of the Petitioners that when Shri Kedarishwar was promoted in April 1969 they should also have been considered may now be noticed. This Court has already held in A.N. Bhoil (supra), where the same promotion was challenged, that it was an ad hoc promotion and the right of consideration conferred by Articles 14 and 16 of the Constitution could not be claimed by another eligible judicial officer in the cadre, having regard to the peculiar conditions then prevailing. What I said in my judgment there may be summarised here. When the High Court took up the question of making promotion to the higher judicial cadre in early 1968, and for a considerable period thereafter, it was faced with an abnormal situation. It did not have an integrated seniority list of the judicial officers before it, because that list was still under preparation. The task of drawing up the seniority list was taken up in July, 1969 only. Meanwhile, the judicial administration had to be carried on and therefore appointments and promotions had to be made. At the same time, care had to be taken to protect the rights of officers concerned against prejudice from such appointments and promotions made in the interregnum. Therefore, on July 21/28, 1966, the Chief Secretary (Integration Cell) of the Himachal Pradesh Government advised all the Departments in Himachal Pradesh that recruitment to vacancies should be made on a purely temporary basis. Subsequently the Central Goverment''s letter dated February 14, 1967, also contained the direction that pending finalisation of the seniority lists no confirmation should be made in any post involved in the process of integration, and promotions and reversions made to meet urgent administrative requirements should specifically be made subject to review when the seniority list was finalised In that context, promotions could only be tentative and had to be of an ad hoc nature. All that was necessary was that a reasonable basis should be adopted for making ad hoc promotions. It was pointed out that the principle of ad hoc appointments could contemplate in its sweep cases of many different kinds. While one case could arise where the need to appoint was so immediate that cases of all eligible candidates could not be considered, there could be another kind of case where the conditions necessary for making an appointment had not yet settled, and the settled structure was not expected to be available within the time permitted by the exigency which required the appointment. A promotion calls for consideration of the merit and seniority of all eligible officers, and although merit plays a dominant role the order of inter se seniority must be available in case the merit of two officers is equal. In case an effective seniority list cannot be immediately contemplated a promotion in the ordinary sense cannot be made. Attention was drawn to the need to examine in each case brought before the court whether the appointment was truly ad hoc in nature or was in reality a normal appointment in disguise. Examples of the latter kind were examined in Romesh Chander v. Delhi Electric Supply Undertaking ILR 1970 Del. 310, and Narendra Bhadur Srivastava v. Public Service Commission U.P 1971 (2) S.L.R. 414, To the extent that the Delhi High Court has taken a contrary view in O.P. Gupta v. Municipal Corporation of Delhi 1973 (1) S.L.R. 209, that even in an ad hoc appointment a person eligible for promotion has a right to be considered. I find myself, with respect, unable to agree. On a closer examination of the facts in that case, it seems that the action of the authorities was understood as malafide because the Petitioner had been repeatedly ignored when appointments were made earlier. The subsequent decisions of the Delhi High Court in Mallinath Jain v. Municipal Corporation of Delhi 1973 (1) S.L.R. 413 merely followed the view taken in O.P. Gupta (supra). Ramchandra v. Deputy Commissioner, Udhampur 1973 (2) S.L.R. 339, was a case whereunder the garb of a temporary order persons eligible for promotion had been ignored, and it was held to amount to a colourable exercise of power. In any event, it was not a case involving an ad hoc appointment. Articles 14 and 16 of the Constitution guaranteeing to eligible officers the right to be considered when a promotion is made presupposes that such consideration is feasible. The right cannot be invoked where the context does not admit of such consideration.

It is true that the promotion of Shri Kedarishwar to the higher judicial cadre has remained ad hoc in nature ever since 1969. But that is because, although when made there was the expectation that the seniority list would soon be finalised and regular appointments would then be made, the validity of the joint seniority list of subordinate judges and of the promotion of Shri Kedarishwar have been challenged by one writ petition or another in this Court. The present writ petition seems to be the last one of those pending, and the time has come when the question of making regular promotions can appropriately be taken up.

The second part of the case, namely, whether the Petitioners are entitled to relief in respect of the joint seniority list of subordinate judges, may now be considered. Insofar as Shri Kedarishwar is concerned, it is apparent that the Petitioners have no case. Shri Kedarishwar was shown senior to the Petitioners in the provisional joint seniority list circulated in August, 1969. It was open to the Petitioners to file a representation challenging that place of seniority. The Petitioner, Shri Shamsher Singh, did file a representation. The Committee of High Court Judges and the Delhi High Court recommended its rejection, and their recommendation was endorsed by the Advisory Committee who said:

Shri Kedarishwar: The Committee observed that his seniority as a Sub-Judge has been correctly fixed by the High Court.

Shri Shamsher Singh: The Committee recommended that the representation may be rejected.

Thereafter, the Central Government finalised the joint seniority list and maintained the position of seniority assigned to Shri Kedarishwar. So far as the Petitioner, Shri Bhatnagar is concerned, he was, like other judicial officers, entitled to make a representation against the place of seniority assigned to Shri Kedarishwar in the list. He did not avail of that opportunity and therefore it is not open to him now to complain in the matter.

It may also be stated that in the writ petition the Petitioners originally contended that the K.L.M. formula was not applicable and therefore Shri Kedarishwar was not entitled to the seniority given to him in the joint seniority list. But during his submissions Shri Inder Singh, learned Counsel for the Petitioners, stated that he did not press the contention that the K.L.M. formula was not applicable. It is the Petitioners'' case that the place of seniority given to Shri Kedarishwar must be a scribed to the application of the K.L.M. formula. Since the application of that formula is not disputed by the Petitioners, the place of seniority assigned to Shri Kedarishwar must be maintained. It has become final and cannot be disturbed.

The case of the Petitioners against Shri Shandil in regard to the joint seniority list may now be considered.

It is contended by the Petitioners that the plea of laches is not admissible here because they have been denied the right to file a counter representation against the representation submitted by Shri Shandil regarding his place in the provisional joint seniority list. It is urged that as they complain of a breach of the principles of natural justice the plea of laches cannot prevail. Now, assuming for the purpose of this submission that such complaint is open to the Petitioners on the terms of Section 82, Punjab Re-organisation Act, nonetheless the plea of laches can be called into operation. In State of Madhya Praesh v. Bhai Lal Bhai (supra), a writ petition brought on the basis of an alleged breach of the principles of natural justice, the Supreme Court declined to grant relief because of the Petitioner''s delay. The Supreme Court observed that it was imperative, if the Petitioner wanted to invoke the extraordinary remedies available under Article 226 of the Constitution, that be should come to court at "the earliest reasonably possible opportunity."

Then, the Petitioners say that they have brought this writ petition within the period prescribed for filing a suit for identical relief and therefore they are not guilty of laches. Reliance is placed on Bhai Lal Bhai (supra) and our attention has been drawn to the observation:

It appears to us, however, 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 remedy under Article 226 can be measured.

This extract from the Supreme Court judgment cannot be read in isolation. It must be read with the observation in that case already extracted above, where the Supreme Court laid down that even if the delay was less than the period of limitation for a civil action for the remedy it could be considered unreasonable. Where the delay corresponds to the period of limitation for a suit for identical relief, the writ petition will almost invariably be rejected on that ground; but a writ petition can also be rejected if the delay is for a lesser period, depending upon the facts of the case. Reference may also be made to the observation of the Supreme Court in Kamni Kumar Das Chaudhary 1972 S.L.R. 746.

...We do not think that the rule that the delay defeats the rights of a party to seek redress by means of prerogative writ under Article 226 of the Constitution could be held to be abrogated merely because if the claim had been brought in a civil court the period of limitation would not have expired.

The Petitioners rely on N. Lakshmia v. Union of India 1973 S.L.R. 532 but nothing said therein supports the Petitioners in the contentions raised by them.

The Petitioners than say that they are invoking Articles 14 and 16 of the Constitution, and a plea of laches cannot be entertained against a petition brought on the basis of the fundamental rights of the Petitioner. The submission is erroneous. In Tilokchand Molichand (supra), which was a petition under Article 32 of the Constitution maintainable only on a violation of the Petitioner''s fundamental rights, the Supreme Court held that the doctrine of laches would be attracted.

Hidayatuallah C.J. observed:

I should say that utmost expedition is a sine qua non for such claims. The party aggrieved must move the court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be recorded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of six months has been provided statutorily but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction.

See also Durga Prashad Vs. Chief Controller of Imports and Exports, The view is now well accepted.

It was followed in Jasmer Singh v. The Union of India 1970 S.L.R. 723, in which the Punjab and Haryana High Court did not accept the law stated in Mrs. H.M. Dhillon v. The State of Punjab 1966 CriL.J. 678 and Mrs. Pritam Singh v. The State of Punjab 1967 S.L.R. 251, wherein it was laid down that the question of laches did not arise when the impugned order was challenged as violating Article 16 of the Constitution. It will be noticed that about the time those two decisions were delivered a Full Bench of the same High Court in Rajindra Prasad v. Punjab State ILR (1966) 238 took the view that the question of delay was as much material to the infraction of a fundamental right as to that of a statutory right. On another petition, Rabindranath Bose v. The Union of India 1970 S.L.R. 616 , filed under Article 32 of the Constitution, the Supreme Court affirmed the view taken in Tilokchand Molichand (suspra) and reiterated that although Articles 11 and 16 of the Constitution were invoked the element of delay was a material factor for consideration when granting relief. Reliance was placed by the Petitioners on The Metal Corporation of India Ltd. and Another Vs. Union of India (UOI) and Another, where a learned single Judge of the Calcutta High Court observed that in a petition brought on the ground that the fundamental rights have been violated the Court should be slow and cautious in denying relief to the Petitioner on the ground of laches. To my mind, the observation does not advance the case of the Petitioners any further.

Another ground on which the Petitioners urge that the defence of laches is not available to Shri Shandil in respect of the joint seniority list is that ever since the list was made final nothing has happened as a result of which Shri Shandil would be prejudicially affected if the list was disturbed. This is not a case, it is said, where Shri Shandil has by reason of the delay of the Petitioners been put "in a situation in which it would not be reasonable to place him" if relief was now granted. I have taken the view that the Petitioners cannot be granted relief against Shri Shandil''s promotion to the higher judicial cadre because of the ground of laches. But there are other benefits, such as the grant of selection grades to the Petitioners, which may be affected by their seniority as Subordinate Judges. I have also held that the explanation tendered by the Petitioners for the delay in filing this petition is not worthy of credence. But nonetheless the delay need not be fatal to the Petitioners'' case against the joint seniority list, as consequences in the shape of benefits other than promotion vis-a-vis Shri Shandil flow from that list which have yet to be finally determined. Accordingly, it is proper to consider the case of the Petitioners in regard to the joint seniority list on its merits.

The first provisional joint seniority list was issued on July 18, 1969. It was superseded by another provisional joint seniority list issued on September 30, 1969. Objections were invited from the judicial officers affected to the place assigned to them in the seniority list. From the extract of the list set out earlier, it is apparent that Shri Shandil was placed junior to the Petitioners. There was no occasion for the Petitioners taking objection to the place assigned to Shri Shandil, and consequently no representation was submitted by them. Shri Shandil, however, was aggrieved by the seniority assigned to him and he submitted a representation. If his representation was accepted he would have become senior to the Petitioners. The Petitioners say that they should have been allowed to represent in the matter before Shri Shandil''s representation was disposed of. There is substance in the contention of the Petitioners. Section 82 of the Punjab Re-organisation Act, 1966, confers power upon the Central Government in the matter of division and integration of the services among the successor States. To this end, by virtue of Section 82(4) of the Act it can establish one or more Advisory Committees for the purpose of assisting it. Section 82(4) indicates that an Advisory Committee established by the Central Government will assist it not only in regard to the division and integration of the services but also for the purpose of ensuring fair and equitable treatment to all persons affected and the proper consideration of any representations made by such persons. I have held in A.M. Bhoil (supra) that the essential nature of the function entrusted to the Central Government by Section 82 of the Act is administrative, and that the object of the machinery devised by that provision is to enable the Central Government to consult the interests affected in order that a proper decision can be taken on the several details involving the division and integration of the services. It is apparent from Section 82(4) that in the discharge of its functions, the Central Government must ensure fair and equitable treatment to all persons affected. It is not necessary for me to hold that in doing so the Central Government must observe the principles of natural justice because, in my opinion, the expression "fair and equitable treatment" construed in the context of the consultative technique employed by the Central Government u/s 82 envisages an opportunity to all persons, who could be affected, to be consulted so that their side of the case could also be placed before the Central Government. It will be noted that when the provisional seniority list was circulated on September 30, 1969, the judicial officers were afforded an opportunity of objecting only to the place assigned to them in the list. Having regard to the place assigned to them and Shri Shandil the Petitioners had no reason to object to the seniority given to Shri Shandil. When Shri Shandil made his representation, the acceptance of which would have operated to the detriment of the Petitioners, it was only right that the Petitioners should have been informed of Shri Shandil''s claim and given an opportunity to represent against it. That is necessarily implied from the object underlying Section 82 and the machinery contemplated by it. It must be remembered that Section 82(4) speaks of representations made by persons affected by the provisions of Section 82. The Petitioners are undoubtedly persons who were affected by the proceedings u/s 82. They also had a right to make representations, and those representations could be made not only in respect of the position provisionally assigned to them in the joint seniority list but also against claims made by other persons in respect of the seniority shown in that list. The Petitioners were not ''afforded an opportunity of representing against the claim made by Shri Shandil. That opportunity was not extended to them at any stage of the proceedings, neither before the High Court Judges'' Committee, nor in the meeting of the Full Court, nor before the Advisory Committee and also not before the Central Government. The joint seniority list was finalised without any such opportunity to the Petitioners. Therefore, the only conclusion can be that the position assigned to the Petitioners and to Shri Shandil in the joint seniority list is invalid, and the corresponding entries showing the position of those judicial officers in that list must be quashed.

My brother D.B. Lal has, in his judgment, given a certain interpretation to the K.L.M. formula and has held that the position assigned to Shri Shandil in the joint seniority list amounts to a deviation from that formula. He has also held that the deviation amounts to a breach of Articles 14 and 16 of the Constitution. I need express no opinion on these points, because I have already taken the view that the Petitioners should have been apprised of Shri Shandils claim and allowed to represent against it and therefore the joint seniority list is to that extent invalid. My learned brother has also observed that the directions given by the Central Government from time to time to the Himachal Pradesh Government for the purpose of assisting it in preparing the joint seniority list, including directions in relation to the K.L.M. formula, must be considered as statutory rules made u/s 84 of the Act and he has held that they are binding on the Central Government. While I am unable to agree, with respect, with all that has fallen from my learned brother, I do not propose to express any opinion here because the matter will now be dealt with by the Central Government. It is for that Government to apply its mind to the task which now lies before it, and in the duty which belongs to it in fulfilling that task I do not wish to impose my own views. That stage has not yet arrived.

The writ petition is allowed in so far only that the entries indicating the seniority of the Petitioners and Shri N.S. Shandil in the joint seniority list of ''Subordinate Judges are quashed. The remaining reliefs are refused. In the circumstances, there is no order as to costs.

C.R. Thakur, J.

I agree with my Lord the Chief Justice.

D.B. Lal, J.

I have read the judgment of my Lord the Chief Justice, and I regret that I have to take a different view in this case. The facts which gave rise to this petition need not be restated because my Lord the Chief Justice has very succinctly given these facts in his judgment.

In short, the case of the Petitioners is that they were appointed to Punjab Civil Service (Judicial Branch) on a date prior to the appointment of Respondent No. 11. As such, considering the length of service, they were senior to this Respondent. As a result to integration of service made u/s 82 of the Punjab Reorganisation Act, 1966, when the Petitioners were allocated to Himachal Pradesh, the provisional joint seniority list was prepared after taking regard to what they called K.L.M. formula. The Respondent No. 9 started his service on 19-10-1956 but was confirmed on 1-11-1962. The Respondent No. 11 started service on 12-9-1961 but was confirmed on the same date. Both these officers belonged to erstwhile Himachal Pradesh and according to their dates of confirmation, Respondent No. 11 was placed senior to Respondent No. 9. Since this inters seniority was required to be maintained while integration of the two services was made, their respective dates of appointment were inter-changed and as a result to integration when the said provisional joint seniority list was issued, Respondent No. 9 having been given the date of appointment of Respondent No. 11 was shown junior to the two Petitioners. The Respondent No. 11 was, of course, shown senior to both of them. Under the K.L.M. formula, he got the date of appointment of Respondent No. 9.

As against the provisional joint seniority list, all the judicial officers were asked to file objections. Since the Respondent No. 9 was shown junior to the Petitioners, they had no occasion to file objections against him. The Delhi High Court which exercised jurisdiction for the State of Himachal Pradesh, in its meeting of Judges decided, upon a representation of Respondent No. 9, that his date of appointment should not be displaced and that he should be given his original date of appointment. To that extent, they interfered with the K.L.M. formula. Neither any representation was invited from the two Petitioners, as required u/s 82, nor were they given opportunity to be heard against this change which the High Court intended to make in the provisional joint seniority list.

The High Court then made its recommendations to the Advisory Committee appointed u/s 82 and their recommendations were accepted. The result was that in the final seniority list the Respondent No. 9 was also shown senior to the Petitioners. This final seniority list was circulated in October or November, 1970. The Petitioners'' grievance is that on principles of natural justice they should have been heard before their seniority was disturbed as compare to Respondent No. 9. They had a right to make representation u/s 82 for which no opportunity was offered because in the provisional joint seniority list so far as the Respondent No. 9 is concerned, there interest was not affected. The Petitioner No. 1 no doubt made a representation against the seniority of Respondent No. 11, but his representation was rejected both by the High Court and the Advisory Committee. As a result to the recommendation made by the Advisory Committee, the joint seniority list was finalised and as stated before, it was circulated in October or November, 1970.

The Petitioners have impugned the joint seniority list and have further claimed that the promotion of Respondents 9 and 11 to the post of District and Sessions Judge should also be quashed on the ground that the claims of the Petitioners were ignored and they were not considered for such promotions.

Essentially the Petitioners rely on Section 82(4) of the Punjab Re-organisation Act, 1966, and that provision need be noticed at this stage:

82(4). The Central Government may by order establish one or more advisory committees for the purpose of assisting it in regard to-

(a) the division and integration of the services among the successor States; and

(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such persons.

In this connection reliance has also been placed by the Petitioners upon Section 84 which exists in the following terms:

The Central Government may give such directions to the State Governments of Punjab and Haryana and to the Administrators of the Union territories of Himachal Pradesh and Chandigarh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this part and the State Governments and the Administrators shall comply with such directions.

It is to be noticed that the emphasis is upon "fair and equitable" treatment to be meted out to all persons affected by the division and integration of services among the successor States. There is definitely an indication in the provisions, that representations would be received from persons affected and these representations would be duly considered by the Advisory Committees.

It would also be convenient to take note of directions which were being issued u/s 84 for compliance by the Administrator of the Union territory of Himachal Pradesh. The earliest in series is the letter dated 11-11-1966 (Annexure B-1) from the Joint Secretary (Integration) of the Himachal Pradesh Government to all Secretaries and Heads of Departments in Himachal Pradesh. It was pointed out in what manner the equation of post had to be made and how seniority was to be determined. As far as possible, the inter se seniority of the officers was not to be disturbed. The second letter dated 24-2-1967 (Annexure B) was again issued by the Joint Secretary (Integration) for the same purpose and in this letter attention was invited to a detailed letter issued by Shri A.D. Pande, Joint Secretary to the Government of India, on 14th February, 1967. It was specifically pointed out that while determining the relative seniority it was to be borne in mind that the inter sc seniority of officer''s drawn from the same integrating unit should as far as possible be maintained. In paragraph 4 of this letter emphasis was again given to ensure fair and equitable treatment to all the persons affected by the provisions of the Act and for that in para 3 a reference was made to the representations to be received which were required to be considered by them. Thereafter on 18-6-1969 the Chief Secretary to Himachal Pradesh Government issued directions, admittedly with the concurrence of the Central Government, that K.L.M. formula was to be observed in the manner set out in this letter for keeping up the seniority in any individual integrating unit and at the same time for integrating any two cadres. It was observed that the K.L.M. formula would ultimately benefit the individuals with longer years of service while integrating the two units. This could be done by kicking up an officer and at the same time kicking down the other, so that he does not get seniority over such officers coming from the other integrating unit who are seniors in length of service as compared to the officer who has been kicked up under the K.L.M. formula. That was the object to be achieved and the examples quoted along with this letter amply signify this position. The logic behind the K.L.M. formula was enunciated in this letter in the following words:

I am directed to say that while considering the representations of various categories of employees against fixation of their seniority in the joint provisional list, it has been observed by the Himachal Pradesh Advisory Committee that in certain cases individuals with longer years of service have been ranked junior to employees with lesser years of service. This had to be done especially in cases where officers were appointed directly against regular posts and therefore, they had to be considered for confirmation earlier than the other officers who were promoted by the department on temporary/ad hoc basis. In order, therefore, to minimise the hardship to such employees to some extent, the Advisory Committee has approved a formula known as ''K.L.M. formula'' by means of which longer period of service of the junior officer is to be assigned to the seniors and which method will ultimately benefit the individuals with longer years of service while integrating two units. In fact, the idea to implement this formula is that the assignment of seniority amongst the personnel is done not in any haphazard manner but according to definite principles and is done with a view to obviate hardship to individuals. An instance of integration of services of the Travn-core staff with Cochin employees along with the detailed example of integration of two units, i.e Punjab and Himachal in one combined list are forwarded herewith for facilitating the concerned departments in determining the joint seniority lists of employees.

After these instructions were received, the Administrator of Himachal Pradesh issued the first provisional seniority list (Annexure-E) on 28-7-1969 and this list was subsequently objected to, because it was not drawn up in accordance with K.L.M. formula. Accordingly, the second provisional list (Annexure-C) dated 18-10-1969 was issued. The K.L.M. formula, as enunciated by the Central Government was correctly observed in the matter of integration of District and Sessions Judges and also of the Subordinate Judges. The Respondent No. 9 was given the date of appointment of Respondent No. 11 and in this manner the seniority of the two Petitioners was preserved as compared to him.

The Respondents have filed (Annexure R-1) dated 20-2-1970 which is also a letter from the Joint Secretary (Integration) to the Himachal Pradesh Government and contains the principles to be observed for K.L.M. formula when several integrating units of Punjab were required to be integrated with one integrating unit of Himachal Pradesh. The essential ingredient of giving the date of appointment of junior officer as the assumed date of appointment of senior officer in the same integrating unit was emphasized.

From these documents it is abundantly clear that inter-change in dates was rather the only ingredient of K.L.M. formula. The object behind this kicking up and kicking down was to keep up the inter se seniority of officers in one unit, so that the cadre is integrated with the other unit, and if a junior officer in one unit is made senior by being kicked up the other is correspondingly kicked down to give the benefit of seniority to the officers coming from the other unit and in this manner the inter sc seniority was maintained and benefit was also accorded to maximum number of officers according to their longevity in service. This was done to keep up the stream of rationality in the matter of integration of services. For this hardship, to individuals, was avoided and some defined principles were laid down so that integration was not done in haphazard manner. The passage quoted above from the letter dated 18-6-1969 of the Government makes the relevant reference in this connection.

The grievance of the Petitioners is that the second provisional seniority list dated 18-6-1969 (Annexure-G) although satisfied the K.L.M. formula, yet the said list was subsequently altered by the Central Government upon the advise of the High Court. The Respondent No. 9 had made a representation for which no notice was given to the Petitioners. The K.L.M. formula was not observed and the Central Government without applying its mind accepted the modification suggested by the High Court. The result was that the Petitioners lost their seniority against both Respondents No. 9 and 11.

A preliminary objection has been taken by the Respondents that the petition suffers from delay and laches inasmuch as the joint seniority list is being sought to be quashed after a lapse of one and a half years. It is further stated that the promotion of the Respondent No. 11 took place on 8-4-1969 and that of Respondent No. 6 took place on 18-5-1971 and since much period has elapsed before a relief of quashing those promotions is claimed, no such relief should be granted.

The explanation offered by the Petitioners for the delay is, that two writ petitions were already pending which related to this matter. One is CWP 70 of 1970 filed by Shri A.N. Bhoil and the other is CWP. 27 of 1971 filed by Shri H.D. Kainthla Respondent No. 12. During the pendency of these writ petitions, the Petitioners filed this petition on 9-5-1972. It is stated that the joint seniority list was a subject-matter of the two writ petitions. In the subsequent petition filed by Shri H.D. Kainthla, the two Petitioners were parties. Shri Kainthla had impugned the joint seniority list on the plea that all Assistant Sessions Judges of Himachal Pradesh, including himself, could be equated against a higher post than that of a Subordinate Judge. As such they were senior to the Petitioners and others who were merely Subordinate Judges of Punjab Civil Service. The Petitioners contend that they were waiting for the decision of the writ petition of Shri Kainthla because had that petition been allowed, perhaps K.L.M. formula would have lost significance and the Petitioners could not have claimed any seniority over Respondents 9 and 11 who were already Assistant Sessions Judges. It was at a late stage when they waited for the decision of the two writ petitions, that they chose to file the present writ petition to vindicate their rights, although they could wait uptill the decision of the two writ petitions. It cannot gainsaid that the point involved in the writ petition submitted by Shri H.D. Kainthla was directly connected with the seniority of the Petitioners vis-a-vis Respondents 9 and 11. They could well have anticipated that if the joint seniority list is disturbed as a result to that writ petition, the K.L.M. formula would be of no significance and the entire basis of seniority would undergo a change. In the writ petition of Kainthla apart from the plea regarding equation of post, the K.L.M. formula was also sought to be invoked with reference to the date of confirmation of officers, that is to say, a confirmed officer is to be placed senior to an unconfirmed officer though both may be belonging to different cadres. In para No. 13 of that petition, quoted in extenso by the learned Chief Justice, reference is pointedly made to the seniority of Petitioner No. 2 (Bhatnagar) who was Respondents No. 15 of that writ petition. According to Kainthla, he being unconfirmed should go down in the list of seniority as compared to confirmed officers of Himachal Pradesh including himself and Shandil. If this application of K.L.M. formula was acceptable as a result to that writ petition, would it not have rendered the relief of the present writ petition totally misplaced and not amenable to the present Petitioners? If that was so, as prudent men they should have waited for the decision of the writ petition of Kainthla, before embarking upon the present petition. The question is not this, as to whether the Petitioners would have got the present relief or benefit as a result to the decision of the writ petition of Kainthla. Rather the question should be as to whether they would have been necessarily denied the present relief claimed in the writ petition in consequence of the decision of that writ petition of Kainthla. It follows irresistibly that the Petitioners had to wait to know the decision in that writ petition. As for the writ petition filed by Shri A.N. Bhoil, it cannot be stated that the seniority of the Petitioners was in any way affected because in that writ petition the joint seniority list was taken for granted and the entire case related to the promotion to the post of District and Sessions Judge.

The Petitioners in para No. 15 have stated as follows:

It is submitted that both the writ petitions referred to above could not be disposed of unless the validity or otherwise and the respective places of persons interested therein are adjudicated upon.

The Petitioners are definitely referring to the joint seniority list in this para of their pleadings. The two writ petitions according to them filed by Bhoil and Kainthla would have pointed out the respective places which the Petitioners could have got in the joint seniority list. In this manner they have pleaded that the position of the Petitioners as compared to the Assistant Sessions Judges including Respondents 9 and 11, in the joint seniority list, depended upon the decision in the writ petition filed by Kainthla.

The ground of delay or laches in preferring a writ petition has been subject-matter of several decisions. It is not difficult to lay down some general principles in this regard. Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, seems to give a complete answer to the question before us. While dealing with a petition under Article 32, the Supreme Court made the following observation:

If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I would only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the, delay arose.

At another place the learned Judge observed:

It follows, therefore, that this Court puts itself in restraint in the matter of petitions under Article 32 and this practice has now become inveterate. The question is whether this Court will inquire into belated and stale claims or take note of evidence of neglect of one''s own rights for a long time? I am of opinion that not only it would (not?) but also that it should (not?). The party claiming fundamental rights must move the Court before the other rights come into existence. The action of Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court. This principle is well recognised and has been applied by Courts in England and America.

(Emphasis mine).

In the case cited above, their Lordships found that after setting the machinery of law in motion, the Petitioner abandoned his claim for a number of years. Hn pleaded mistake of law as an excuse for not preferring a petition earlier. It was noted that everyone was expected to know the law and a mistake of law will not be an excuse. However, the situation in the case before us is entirely different.

To a similar effect is the observation of the Supreme Court in State of Madhya Pradesh and Anr. v. Bhailal Bhai and Ors. AIR 1964 S.C. 1000. The following observation may be noted:

It may, however, stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be send use of discretion to leave the party to seek his remedy by the ordinary mode to action in a civil court and to refuse to exercise in his fauuor the extraordinary remedy under Article 226 of the Constitution.

The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the Legislature as the time within which the relief by a suit in civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this person, it will almost always be proper for the Court to hold that it is unreasonable.

(Emphasis mine).

In Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service, Amravati and Others, the Supreme Court while considering the question of delay quoted with approval the principle stated by Sir Barnes Peacock in Lindsay Petraleum Co. v. Prosper Armstrong Hard, Abram Farewell, and Jon Kemp (1874) 5 PC 221 at p. 239:

Now the doctrine of laches 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 conduit 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 afterwards 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, if founded upon mere delay, that delay of course not amounting to a bar by any statute of 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 relates to the remedy.

(Emphasis mine).

It is evident that in cases where delay caused is equivalent to waiver of right by the Petitioner or where due to delay the other party is placed in a situation adverse to him, the petition is to be rejected on account of delay and laches. The court has to strike a balance between justice and injustice, and after considering all facts and circumstances decide about the reasonable character of the explanation offered. In Maharashtra State Road Corporation (supra), the petition was dismissed because the negligence or omission committed by the Petitioner enabled the other party to derive certain benefits from which he could not be deprived. In those circumstances the delay was held to be a ground of refusal of the petition.

A few more cases need be noticed in this connection. In The The Metal Corporation of India Ltd. and Another Vs. Union of India (UOI) and Another, the petition was opposed on the ground of laches and the allegation was that the Respondents had materially altered their position to their advantage. It was also held by the learned Judge that on the ground of violation of fundamental rights, the court must be slow and cautious in denying to the Petitioner the relief on the ground of delay and laches.

In Rabindra Math Bose and Ors. v. Union of India and Ors. 1970 S.L.R. 616 the Supreme Court considered the ground of delay fatal to the petition because the seniority list was challenged after a lapse of 15 years and the explanation offered for the delay was not considered proper by the Court. The explanation stood like this that representations one after another were submitted by the Petitioner, although these representations were rejected on merit. It was held that mere filing of representations, in the circumstances, would not justify the delay or laches.

In Kamini Kumar Das Choudhury v. State of West Bengal and Ors. 1972 S.L.R. 716 also the Supreme Court considered the effect of delay or laches upon a petition under Article 226. It was held that because the civil suit if filed would have been within limitation, is not an explanation for delay. The question in such cases is always whether relief under Article 226 could more justly and properly be given than by leaving the parties to the ordinary remedy of a suit. For the reasons stated in the judgment and for the facts and circumstances made out, the delay was not considered reasonable. It was noted that the order of dismissal if quashed at such a late stage would necessarily lead to fresh enquiry against the Appellant and he "would then have got another long period of years in front of him to go on contesting the validity of proceedings against him until he had gone past the age of retirement". In those circumstances, the delay was considered unreasonable. The ratio of the case is that facts of each case differ and on merits if the explanation for delay is considered reasonable, the petition under Article 226 should not be thrown out in limine.

In N. Lakshmaiah and Ors. v. Union of India and Ors. 1971 S.L.R. 532, a Full Bench of Delhi High Court had the occasion to consider the question of delay and laches in filing a writ petition under Article 226. The delay was more than the period of limitation prescribed for the suit and the grounds of delay were not considered reasonable and hence the petition was thrown out on the ground of delay. The Petitioner had questioned an old rule which was left unchallenged for so many years and during these years it was acted upon without any complaint. In those circumstances the delay was considered unreasonable. It has to be noted that in para 9 of the judgment the learned Judges held that even if the preliminary finding upon delay was considered wrong, on merits the case was not made out in favour of the Petitioner. Therefore, the case also turned upon the merit and was not essentially decided on ground of delay and laches in filing the writ petition.

In R.L. Gupta v. Municipal Corporation, Delhi 1973 S.L.R. 359, a learned Judge of Delhi High Court was considering a very much similar case. The delay and laches was explained by the Petitioner by stating that another writ petition was filed by another officer on similar grounds and he was waiting for the decision on it. The relief was not denied on ground of delay. In the instant case also, the Petitioners could legitimately wait for the decision of the writ petition filed by Shri H.D. Kainthla as that decision was likely to materially affect their position in the seniority list.

In O.P. Gupta v. The Municipal Corporation of Delhi and Ors. 1973 (1) S.L.R. 209, a Division Bench of Delhi High Court considered a case where Articles 14 and 16 were stated to be infringed and a plea of delay or laches was taken by the Respondents. It was observed that a writ petition may be entertained even after the expiry of period of limitation for a suit, if there is explanation for delay. It: was also observed that the petition would not be entertained if delay is unexplained and right of others have come into existence. It cannot be stated in the instant case that any right has come into existence in favour of others. Shandil does not get a right to the post, simply because he has been appointed out of a list defectively prepared. His appointment need not even be set aside and the Petitioners'' case is only to be reviewed with reference to the seniority list in case the same is altered by the Central Government. No one can legitimately deprive Shandil of the status or pay which he has obtained by working against the post of a District Judge. Similarly, it may not be necessary to declare his decisions ultra vires because that contingency can never arise. The Government can always create a post in special circumstances to safeguard his decisions.

In Mrs. J.K. Pritam Singh and Ors. v. The State of Punjab and Ors. 1967 S.L.R. 251, a Division Bench of Punjab High Court was considering the question of delay and laches in filing a writ petition. According to their Lordships, any such question does not arise when the impugned order is held to be violative of Article 16. To the same effect is another decision of a Division Bench of that High Court in Mrs. H.M. Dhillon v. The State of Punjab and Anr. 1966 Current Law Journal 678, Similarly in the instant case, the Petitioners claim violation of Article 16 and, apart from that, have given a reasonable explanation for the delay and laches in filing the writ petition.

With this state of law, it is not difficult to infer certain general propositions. The question of limitation is not very material while explaining the delay and laches. If the limitation for a civil suit has expired, "ordinarily" the delay and laches would be considered unreasonable. If it has not expired, even then delay and laches may be considered unreasonable if proper explanation is not forthcoming. If the Respondent has altered his position and certain rights have become vested in him or in third parties, delay and laches would be a good ground for refusing the relief in a writ petition. If a plea of waiver is made out against the Petitioner on account of delay and laches, then too the relief would not be granted. The nature of fundamental right violated is also one of the material consideration. No hard and fast rule can be laid down. The merits of each case shall have to be gone into and decided.

It cannot be stated that the Petitioners had at any time waived their rights or that the Respondent No. 9 altered the position to his disadvantage due to delay and laches. The Petitioners, if they are ultimately found seniors to Respondent No. 9 may be considered to be promoted from the date of promotion of Respondent No. 9 and may be entitled to claim salaries and other benefits of service. As far as I think, no question of public interest or public policy even arises in these matters. To say that the petition should have been filed no sooner the promotion was made, is to presume that some decisions must have been given during the interval and similar questions of public policy and public interest would arise with respect to such decisions and it is totally besides the point to contend that we could have tolerated a few decisions that were given during the interval and not so many which would have been given if the filing of the petition was delayed. The crux of the matter lies with the ground of delay alleged by the Petitioners and how far the court can consider such a ground reasonable. Similarly it cannot be stated that a status has been acquired by Respondent No. 9 and a vested right has been created so that no benefit can be given to the Petitioners. It should not be the purpose of the Petitioners to deprive Respondent No. 9 of his promotion but to seek, their own promotions from a due date.

I shall presently deal with the question regarding fundamental rights said to be violated and in respect of "fair and equitable treatment" that was denied to the Petitioners. The Petitioners were not admittedly given, opportunity of hearing, inasmuch as the provisional seniority list which was acceptable to them was altered to their disadvantage. The right of representation was thus denied. The instructions regarding K.L.M. formula were disregarded. Therefore, considering the merits of the petition of which a detail shall hereinafter be given, I am of the opinion that the delay has been validly explained by the Petitioners. There was a legitimate reason for not coming to the Court at an earlier stage. Therefore, the petition cannot be struck down on the ground of delay or laches.

As I have already pointed out, in Section 82(4) the principle of "fair and equitable treatment" has been enunciated and I have to see how far this principle has been observed in the case of the Petitioners. The High Court no doubt asked for representations against the second provisional list (Annexure-C) but the two Petitioners could not possibly represent against Respondent No. 9 as he was already shown junior to them. The High Court or the Central Government did not give any opportunity to the Petitioners to make representation against the objections received from Shandil (Respondent No. 9). It is abundantly clear that the Petitioners were directly affected by the decision of the High Court or the Central Government as they were kicked down to Respondent No. 9 although they would have no objection to be kicked clown as compared to Respondent No. 11 (Kedar Ishwar). The Advisory Committee, without applying its mind accepted the decision of the High Court. The contention of the learned Counsel for the Respondent that "fair and equitable treatment" was given to Shandil and that: was the purpose of Section 82(4) and nothing beyond it, cannot be accepted. Fair and equitable treatment was to be given to the Petitioners as well. For this, due notice should have been given to the Petitioners of the representation of Shandil and thereafter a decision should have been given. This was not done and a clear prejudice has been caused to them. The learned Counsel further contended that counter representations could not be invited especially in a case where the number of integrating officers was large. This contention is factually wrong because in the State the number of Subordinate Judges is not so large. Apart from this the principle of natural justice embodied in "fair and equitable treatment" cannot be circumscribed by any such feeble argument and injustice done cannot be defended with reference to the number of persons involved or the convenience of the authorities who wanted to speed up the work of integration. It is true that Section 82(4) does not suggest counter representation and the provision made therein involves only a consultation which the Central Government has to make with the Advisory Committees. Even then the administrative function required to be performed by the Advisory Committee, was always to be guided by the principle of "fair and equitable treatment" to be awarded to each officer affected by integration. In this manner Section 82(4) was violated and the spirit of that section was not observed. The Petitioners were condemned unheard and the statutory provisions were not followed. As such, there cannot be two opinions that "fair and equitable treatment" was not meted out to the Petitioners.

The position regarding K.L.M. formula is more than clear in this case. There is a specific pleading on behalf of the Petitioners in their rejoinder that K.L.M. formula was not modified by the State Government in any other case except in the present one. The Petitioners could not but ask the State Government to point out any other case in which the formula was modified in the manner it has been done in this case. On their petition (C.M.P. 602/72), the Court was pleased to make an order that the required information was to be supplied by the Government on the date of arguments. No information has been supplied and the presumption is that there cannot be found any other instance of modification of K.L.M. formula as has been done in the case of the Petitioners. The letters of the Government dated 18-6-1969 and 22-2-1970 (Annexure R-I) do contain the principles regarding K.L.M. formula. These letters were not modified or altered in any manner by the Government. Therefore, the principles laid down in these letters were to be followed in the case of integration of the two Petitioners with the Subordinate Judges of Himachal Pradesh. When the Central Government had not changed its directions which were of the nature of directions contemplated in Section 84, it would be a misplaced argument that such directions could be altered to the detriment of any officer without rhyme or reason in any arbitrary manner for extraneous reasons. It cannot be stated that Shandil constituted a class by himself so that any special benefit was to be given. The directions were as much binding on the Administrator as these could be upon the Central Government. The directions were statutory u/s 84 and were binding on the Administrator. It was stated that the Central Government could have disregarded these directions. In fact they have not done so in this case because then they would have issued a modification in the directions. I fail to understand how the Central Government can take a stand that in a particular case they have disregarded their own directions for which there was no valid reason. The High Court was, of course, assisting the Advisory Committee and through it the Administrator or the Central Government.

If one considers the replies filed by the Union of India and the State Government in this regard, it is explicitly known that they have not pleaded that they themselves had modified the K.L.M. formula so that it could be applied in a different manner in any particular case. Rather their pleading is, that the High Court suggested a modified application and they could not but accept the suggestion. The Petitioners in their rejoinder have of course stated that the modification was discriminatory as well as arbitrary and I am of the opinion that they succeeded in proving it.

As I have already pointed out the observation of the High Court is wrong that assumed date which was to be given to the senior officer of one integrating unit was not an essential ingredient of the K.L.M. formula. Rather it was the only essential ingredient covered by the K.L.M. formula. The formula involves nothing else but inter-change of dates so that the senior officer gets the assumed date of the junior officer. If this inter-changing in dates is not observed in a particular case, the essential ingredient is violated.

At this stage in order to fortify my argument I need take support from a few cases of the Supreme Court. Union of India (UOI) and Another Vs. P.K. Roy and Others, covers the case of the Petitioners in all fours. As the facts of this case are, their Lordships were considering the integration of the two Cadres of Assistant Engineers of Madhya Pradesh. They have referred to the principle of kicking up and kicking down which is another word for K.L.M. formula. A provisional gradation list was issued and representations were invited from officers. Thereafter the Central Government suggested sonic; modifications. The State Government followed them and issued the final gradation list without asking for another representation. In the final gradation list the State Government had followed principles different from the one followed in preparing the first gradation list on the basis of which representations were invited. No opportunity was granted to the officers adversely affected by the final gradation list. The Supreme Court held that the gradation list was liable to be quashed and issued directions for preparation of a fresh seniority list. The following observation of their Lordships may be noticed:

...Normally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case....

In my opinion, the test laid down by their Lordships is satisfied in the instant case and an opportunity should have been afforded to the Petitioners if the intention was to alter the K.L.M. formula to their disadvantage.

In N. Subba Rrao etc. Vs. Union of India (UOI) and Others, which is again a case of integration of services, the Central Government after considering the representation of certain officers took a decision concerning the equation of posts and inter se seniority of officers holding equivalent posts. Subsequently this decision was altered to the disadvantage of some officers. No right of representation was given. It was held that the order suffered from the vice of denial of principles of natural justice and hence the same was quashed. A mandamus was issued to the Central Government to proceed afresh with the integration of services after giving opportunities to the persons affected to make their representations. Yet another case of the Supreme Court in this connection is Union of India v. G.R. Prabhavalkar and Ors. 1973 S.L.R. 1007, The question related to the integration of services of Madhya Pradesh Sales Tax Officers with Bombay Sales Tax Officers. The former were equated with Grade III Bombay Officers. Thereafter representations were received from Madhya Pradesh Officers and they were graded with Grade II Bombay Officers. When this decision was taken, fresh representations were invited from Bombay Officers. One of the officers objected to his equation but his objection was rejected. Thereafter, Bombay Officers filed the writ petition. The High Court allowed the writ petition on the ground that the equation made by the Central Government was not a rational one and that they had taken into account irrelevant and extraneous matters. Before the Supreme Court, the learned Counsel for the Bombay Officers pointed out that the order of the Central Government was violative of the principle of natural justice inasmuch as no opportunity was given to the Bombay Officers to make their representations. The argument was approved by their Lordships and the following observations need be noted:

It is true that the decision taken by the Central Government without giving an opportunity to the officers affected to make representations is not a valid one. It has been so held by this Court in Union of India (UOI) and Another Vs. P.K. Roy and Others, The Madhya Pradesh Officers filed representations to the Central Government against this equation. It is not clear from the records whether any counter representations were received by the Central Government from the Bombay Officers. Nor is it clear whether the Central Government called upon the Bombay Officers to offer their comments or views on the claims made by the Madhya Pradesh Officers. Any how the order came to be passed on April 23, 1960. This order has been struck down by the High Court, not on the ground that the Bombay Officers have not been given opportunity to make representations, but on other grounds. Assuming that the Central Government did not give an opportunity to the Bombay Officers to make their representations before passing the order of April 23, 1960, the defect in this regard stands rectified by the fresh order passed on February 15, 1969.

In S.G. Jaisinghani v. Union of India and Ors. 1967 S.C. 1427, their Lordships were considering a certain quota rule relatable to officers promoted and officers from direct source. The quota rule was attributable to the service recruitment rules and hence it was considered to be a statutory rule. A duty was cast on the Government to determine the method of promotion in accordance with the quota rule. Having fixed a quota in exercise of the power under a defined rule, between the two sources of recruitment, no discretion was left with the Government to alter that quota according to the exigencies of the situation or to deviate from the quota in any particular order by its own will or pleasure. Their Lordships pointed out the inhibition of arbitrary power which may be exercised in the garb of discretion conferred on executive authorities. The following passage need be noticed:

...In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.

The K.L.M. formula received its statutory sanction u/s 84 in the instant case. The rule was as much binding on the Central Government as it was upon the Administrator the Central Government has not changed the rule as a fact in any other case. In this manner the rule of quota pointed out by their Lordships can be equated with the rule of K.L.M. formula and on the basis of reasoning approved by them, the Central Government could not disregard the said rule. I am, therefore, persuaded to hold that fair and equitable treatment has not been meted out to the Petitioners. A right of representation contemplated under Sub-section (4)(b) of Section 82 has been denied to them. The K.L.M. formula to which the Central Government still adheres to and has applied it uniformly in every case, has not been applied in the case of the Petitioners. The High Court suggested an amendment which was accepted without demur by the Advisory Committee which assisted the Central Government. They did not apply their mind and in fact the decision should have been of the Central Government and not of the High Court. Even if it was the decision of the Central Government they did not accept their own directions which were issued u/s 84. In this manner a rule was disregarded for extraneous reasons.

The next contention of the Petitioners in this regard refers to Articles 14 and 16. It is manifest under Article 14 equal protection of the law was to be provided to the Petitioners. If Sections 82 and 84 were violated, equal protection of law was apparently not guaranteed to the Petitioners. I have already indicated that the K.L.M. formula was a direction issued by the Central Government and being statutory u/s 84 was not applied in the case of Respondent No. 9 and which directly prejudiced the Petitioners. It has been contended that no discrimination has been made because Respondent No. 9 was promoted as he was senior in the gradation list. The gradation list itself is liable to be quashed because fair and equitable treatment was not given to the Petitioners while it was made by the Central Government. It would, therefore, be begging the question to say that the promotion was given to Respondent No. 9 on the basis of seniority list which itself is under dispute. It is then submitted by the learned Counsel that the Petitioners have not been able to set out grounds as to why they should have been preferred on merit as against the Respondent No. 9. As I have stated above, equal protection of law has not been granted to them. That is enough to attract Articles 14 and 16 of the Constitution. In fact the promotion of the Respondent No. 9 need not be quashed in these proceedings. When the new gradation list is prepared, only then it would be known as to whether the Petitioners would deserve promotion with effect from the date Respondent No. 9 has been promoted. Amongst the judicial officers, as indicated by the second provisional seniority list (Annexure C), the K.L.M. formula was observed in the matter of District and Sessions Judges inasmuch as the date of appointment of Shri Dhamija was given as the assumed date of appointment for Shri Aggarwala who was senior to him. It is stated that Shri Dhamija did not make any representation at that time as Shri Shandil had done. That was, according to the learned Counsel, a distinguishing feature between the two category of cases. I do not accept this contention. The fact of Shri Shandil having made a representation is really besides the point. It cannot be denied that the K.L.M. formula was observed without modification in the case of District and Sessions Judges while it has been observed with a modification in the case of Subordinate Judges. Shri Dhamija and Shri Shandil, were placed in similar situation and they were being affected by the K.L.M. formula. The modification made in the case of Shri Shandil affected the rights of the Petitioners and as compared to District Judges who belonged to the higher cadre and were similarly placed for the application of K.L.M. formula, the Petitioners were discriminated inasmuch as they were deprived of the advantage of the assumed date. In this manner Articles 14 and 16 were attracted. While making integration, the seniority of officers in both the units of Punjab and Himachal Pradesh was required to be considered and it would be the direct result of integration if an officer who is senior in one category with reference to his date of appointment is made junior to an officer falling in the other category, with less number of years to which he could be credited as a result to the application of the K.L.M. formula. Therefore, in my opinion both Articles 14 and 16 have been violated in the matter of fixation of seniority due to non-observance of K.L.M. formula.

In E.V. Sheshadri v. State of Mysore and Anr. AIR 1966 Mys 31, a Division Bench of that Court was considering integration in services. The State Government published a revised list and re-fixed the seniority by making certain alterations so that a junior officer got the seniority as compared to a senior officer. Representations of all affected officers were not considered. It was held that Article 14 was violated. The placing of a particular officer in a gradation list was considered an act arbitrary and whimsical and, therefore, involved an infringement of that Article. In State of Mysore v. R.R. Kulkarni and Ors. 1972 S.L.R. 795, their Lordships of the Supreme Court were considering the case of reorganisation in services. Some police officials in parent State were promoted after re-organisation. The order was held discriminatory to senior officers allocated to newly formed State. The order of parent State was not considered irrelevant in deciding discrimination to senior officers allocated to new State. This authority lends support to the view that I have taken, namely, that any one of the two units cannot be considered singly and independent of the other, while allocating the seniority and if under a settled principle senior officers of another group are prejudiced and are held junior to any officer of the other unit, they would be entitled to challenge the gradation list with reference to Articles 14 and 16.

Therefore, the seniority list is also liable to be quashed for infringement of Articles 14 and 16.

The case of Respondent No. 11 (Kedar Ishwar), of-course, stands on a different footing. Against him opportunity was granted to the Petitioners to make a representation. He was shown senior to them because he was given the assumed date of appointment of Shandil. The Petitioner No. 1 did make a representation against him. His representation was admittedly rejected both by the High Court and by the Advisory Committee. The Petitioner No. 2 could have also made a representation against his appointment. The learned Counsel for the Petitioners adheres to the K.L.M. rule and he has withdrawn his alternative plea that the Respondent No. 11 could have also been brought down to the Petitioners in the gradation list independent of the K.L.M. formula. Therefore, the legal position now sustained by the Petitioners is, that the K.L.M. rule had applied and if that was so, Respondent No. 11 was rightly placed in the order of seniority. It cannot be stated that fair and equitable treatment was not given to the Petitioners with reference to the seniority given to Respondent No. 11. Similarly Articles 14 and 16 are also not attracted to his case. Therefore, no relief can be granted against this Respondent.

There was some discussion at the Bar about the ad hoc appointment of Respondent No. 11. This appointment was made on 8th April, 1969, and was initially to last for a couple of months. However, it has continued for a couple of years. The Petitioners can have a legitimate grievance that the ad hoc appointment of Respondent No. 11 should not have lasted for so long a period and some administrative decision could have been taken to regularize the appointment. But in the present petition the promotion of Respondents 9 and 11 are not to be quashed for the reasons hereinafter stated. It would, therefore, be besides the point to consider as to whether the Petitioners have pleaded necessary facts on a comparative statement of merit, between themselves and Shandil or Respondent No. 11 in the petition. I can only strike a note of caution by remarking that the Petitioners should have a faith in the High Court and the State Government, and once the seniority list is set right, some administrative decision would necessarily be taken. Let there not be only a pious wish on our part to set right the mistakes. I for one would be in favour of giving a direction to the Central Government and the State Government to decide about the seniority of the Petitioners with reference to Respondent No. 9.

In the last I have to consider as to what relief can be granted to the Petitioners. In this connection it has been stated that the Petitioners should make first a representation to the Central Government and then wait for its decision. Thereafter they could approach the Court for a proper order in their favour. It has been found as a fact that fair and equitable treatment has not been given to the Petitioners within the meaning of Section 82. Their right of representation has been denied. A direction of the Central Government issued u/s 84 has been violated. The consequence that necessarily follows is that the seniority list is to be quashed. Even then the promotion of Respondent No. 9 need not be set aside. The reason is simple enough. One does not know as to what would be the seniority list which shall hereinafter be prepared by the Central Government. The promotion to the post of District Judge is always made on the principle of merit-cum-seniority. The Petitioners would only be promoted from a retrospective date, in case they are placed senior to Respondent No. 9 and they are also found eligible to hold the higher post. Therefore, the promotion of Respondent No. 9 cannot be quashed and no order of promotion can be made in his place in favour of the Petitioners. It is not necessary to quash the promotion as soon as the seniority list is set aside. Although promotion depends upon seniority, yet it would not be correct to say that promotion necessarily follows seniority. It would, therefore, be incorrect to say that we cannot do without quashing the promotion. Once the seniority is set aside, a direction can be issued to the Central Government to re-fix the seniority list and such directions have all along been given in the above noted Supreme Court cases cited before us.

The petition is, therefore, allowed and the final seniority list of Subordinate Judges (Annexure-A) so far as it relates to the Petitioners and Respondent No. 9 is quashed. The Central Government is directed to re-fix their seniority after affording opportunity to the Petitioners to make representations against the seniority allotted to Respondent No. 9. The other reliefs prayed for in the petition are not granted.

The Petitioners shall get their costs from Respondents 1 and 2. The counsel fee to be assessed at Rs. 200.

For the reasons contained in our respective judgments the writ petition is allowed in so far only that the entries indicating the seniority of the Petitioners and Shri N.S. Shandil in the joint seniority list of Subordinate Judges are quashed. The remaining reliefs are refused. In the circumstances, there is no order as to costs.