Rajeev Bhardwaj And Others Vs State Of H.P. & Others

,,,

Anoop Chitkara, J",,,

1. After pronouncing dissenting verdicts, Ld. Division Bench could not state the points of difference in terms of clause 26 of Letters Patent, giving a",,,

cause to the 5th respondent to come up before this Court under Rule 5 of the Appellate Side Rules for the High Court of Himachal Pradesh read with,,,

Clause 26 of Letters Patent Constituting the High Court of Judicature at Lahore, and as made applicable to this Court, seeking to declare the",,,

reference to the third Judge as incomplete, and thus, return it for framing a proper reference on the points of difference between the divergent views,",,,

and in the alternative refer the matter to Hon’ble Chief Justice to pass necessary orders for constituting a full bench in terms of Rule 5 of,,,

Appellate Side Rules for the High Court of Himachal Pradesh.,,,

2. The main question raised in the writ petitions relates to inter-se seniority dispute amongst three streams of H.P. Higher Judicial Service, i.e.,",,,

(i) The officers promoted on the basis of merit-cum-seniority under 50% quota (Appellant/Petitioner Mr. S.C. Kainthla);,,,

(ii) The officers promoted on the basis of limited departmental competitive examination under 25% quota (Appellant/ Petitioner Mr. Rajeev,,,

Bhardwaj); and,,,

(iii) The direct recruits under 25% quota. (Respondents 3 to 6).,,,

3. The Petitioners/Appellants' grievance is that the direct recruits have exceeded their quota, and thus their appointment dehors the H.P. Judicial",,,

Service Rules, 2004. Such an appointment would not confer any rights upon the respondents 3 to 6, and they cannot claim their seniority due to the",,,

reasons that the appointment itself exceeded their quota prescribed in the mandate of Hon'ble Supreme Court in All India Judges Association v. UOI,",,,

(2002) 4 SCC 247.,,,

FACTS:,,,

4. The facts apposite to adjudicate this application, trace its origin to Nov 13, 1991, when Hon’ble Supreme Court referred the matter about pay",,,

and conditions of service of Judicial Officers to a Commission. In terms of the resolution dated 21.3.1996, Union of India constituted First National",,,

Judicial Pay Commission, headed by Justice K. Jagannatha Shetty, a former Supreme Court Judge. This commission is popularly known as Shetty",,,

Commission.,,,

5. In 1999, the H.P. Judicial Officers Association, along with some of its members, including the appellants, filed CWP No. 61/1999, wherein they",,,

assailed the seniority of directly recruited Additional District and Sessions Judges.,,,

6. On 11.11.1999, Shetty Commission submitted its report, which led to the pronouncement by Hon’ble Supreme Court in All India Judges",,,

Association v. Union of India, (2002) 4 SCC 247, with the following directions:",,,

28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the higher judicial service i.e., the cadre of District Judge will be:",,,

[1](a) 50 per cent by promotion from amongst the Civil Judges (senior division) on the basis of principle of merit-cum-seniority and passing a suitability,,,

test;,,,

(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (senior division) having not less than,,,

five years qualifying service; and,,,

(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test,,,

conducted by respective High Courts.,,,

[2] Appropriate rules shall be framed as above by the High Courts as early as possible.,,,

29. Experience has shown that there has been a constant discontentment amongst the members of the higher judicial service in regard to their,,,

seniority in service. For over three decades, large number of cases have been instituted in order to decide the relative seniority from the officers",,,

recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways",,,

of recruitment to higher judicial service. The quota for promotion which we have prescribed is 50 percent by following the principle ""merit-cum-",,,

seniority"" 25 percent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also",,,

shown that the least amount of litigation in the country, where quota system in recruitment exists, in so far as seniority is concerned, is where a roster",,,

system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with",,,

the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their",,,

recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster",,,

system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal",,,

and Ors. v. State of Punjab . One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation,,,

to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to,,,

suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal's case (supra) as early,,,

as possible. We hope that as a result thereof, there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply",,,

prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative,,,

seniority of the members of the higher judicial service has to be protected but the roster has to be evolved for the future. Appropriate rules and,,,

methods will be adopted by the High Courts and approved by the States, wherever necessary by 31st March, 2003.â€​",,,

7. In compliance with the mandate of Hon’ble Supreme Court, the Hon’ble High Court framed H.P. Judicial Service Rules, 2004, which came",,,

into effect from 20.3.2004. Rule 5 prescribes the method of recruitment, qualification, and age limit for the aspirants, as drawn from various",,,

categories/streams, and reads as follows:",,,

“5. Method of recruitment, qualification and age limit: -",,,

In respect of each category of posts specified in column (2) of the table below, the method of recruitment and minimum qualification, age limit etc.",,,

shall be as specified in the corresponding entries in columns (3) and (4) thereof.,,,

Sl. No.,Cadre,Method of recruitment,"Qualification, Age limit &

experience etc.

1.,"District

Judge/Addl.

District Judge","a) 50% (w.e.f.1.1.2011 65 %) by way of promotion

amongst the Civil Judge (Sr. Divn.) on the basis of

principle of merit-cumseniority and passing a suitability

test as may be prescribed and conducted by the High

Court in accordance with the regulations.","Must have been in the cadre

of Civil Judges (Sr.

Division) for a period of not

less than two years.

,,"b) 25% ( w.e.f.1.1.2011 10% ) by promotion from

amongst Civil Judges (Sr. Divn.) on the basis of merit

through limited competition examination as may be

prescribed and conducted by the High Court in

accordance with the regulations","Minimum service of five

years including the service

rendered in the cadre of

C i v i l Judges (Junior

Division).

,,"c) 25% by direct recruitment from amongst eligible

Advocates on the basis of examination written as well

as oral (viva voce) test as may be prescribed and

conducted by the High Court in accordance with the

regulations","The following shall be the

eligibility criteria including

qualifications, age limit and

experience etc.- (i) Citizen

of India. (ii) Holder of a

degree in Law as

recognized by the Bar

Council of India. (iii)

Practising Advocate at the

Bar for a minimum period of

seven years as on the last

date fixed for receipt of the

applications.

Mr. Rajiv Sharma, submits and undertakes before us that if the petitioners indeed file objections and submit representations against the aforesaid",,,

gradation list, the High Court on its administrative side shall consider such objection(s)/representation(s) and dispose them of in accordance with law",,,

and on their merits within the shortest possible time, preferably within 2-3 months.",,,

Based on the aforesaid agreement between the parties, the Writ petition is disposed of as settled. We pass the following order and issue hereinbelow",,,

mentioned directions:-,,,

Only in so far as the placement of direct recruited Additional District Judges in the aforesaid gradation list is concerned (and for no other reason or,,,

ground), it shall be open to petitioner No. 1 as well as other aggrieved Officers, if any, to file objections or make representations against their alleged",,,

improper placement and for seeking rectification/redressal of grievances. Such objections shall be filed and such representations shall be made, if any,",,,

latest by 30th April, 2005.",,,

The High Court on its administrative side shall receive the aforesaid objections/representations, process the same, examine and consider them on their",,,

merits and dispose them of in accordance with law.,,,

If in the process of consideration, the High Court feels that anyone whose name has been included in the aforesaid gradation list needs to be displaced",,,

to a lower position, an opportunity of being heard shall be afforded to such person but only through the mechanism of a written representation. No",,,

such person shall have any right of a personal hearing.,,,

The High Court on its administrative side shall take a final decision in the aforesaid matter on its merits and in accordance with law as expeditiously as,,,

possible and in any case by 31st July, 2005.",,,

If anyone feels aggrieved by the decision of the High Court, it shall be open to such person to approach this Court again on the judicial side.",,,

In view of the aforesaid order, no earlier representation filed on the subject by any one shall be entertained. All such earlier representations shall be",,,

consigned to records without taking any action thereupon.,,,

Since this Writ petition is being disposed of as settled in the light of the aforesaid agreement between the parties, we wish to clearly place on record",,,

that we have not gone into any question relating to the merits of the controversy between the parties nor have expressed any opinion with regard,,,

thereto. All questions and issues are left open.,,,

The writ petition is disposed of. All interim orders shall stand vacated.â€​,,,

10. In terms of the directions mentioned above, the H.P. Judicial Officers Association and various other Judicial Officers of the H.P. Higher Judicial",,,

Service and H.P. Judicial Service filed representation, which were referred to Two Judge Committee. The said Committee made recommendations",,,

for rejecting all the representations. The matter was accordingly placed before the Full Court and vide its meeting held on 22.8.2005, the Full Court",,,

accepted the recommendations of the Committee and resultantly, all the representations including the one raised by the H.P. Judicial Officers",,,

Association filed on its behalf, and also of its members were also rejected, and informed the representationists about rejection vide letter dated",,,

24.8.2005.,,,

11. The petitioners had also filed two interim applications registered as IA Nos. 234 & 235 of 2009 for seeking interim directions in WP (C) No. 1022,,,

of 1989.,,,

12. However, both applications came to be rejected by the Hon’ble Supreme Court vide its order dated 26.03.2009, which reads thus: -",,,

“In both these applications, the Association of Judicial Officers pray that there should be a roster system in the matter of seniority if there is any",,,

violation of the roster system, the applicant would be at liberty to take any appropriate steps. We do not wish to interfere with the applications. I.A.s",,,

are disposed of accordingly.â€​,,,

13. In March 2009, H.P. Judicial Officers’ Association along with a few of its members filed W.P. (C) No. 532 of 2009 in the Supreme Court of",,,

India for the following reliefs:,,,

“(i) that the roster system as approved in R.K. Sabharwal’s case 1995(2) SCC 745 is applicable to the appointments being made in the cadre,,,

of District Judges that the direct recruits be held to have only 8 posts in the cadre of 34 posts in view of their 25% quota, whereas the direct recruits",,,

at present are holding 11 posts beyond their quota;,,,

(ii) that the further direct recruitment be held only when the number of direct recruits is reduced to 8 from the present 11 in the cadre of 34 posts and,,,

till then direct recruitment may very kindly be ordered to be stopped;,,,

(iii) that any action taken by the respondents during the pendency of this writ petition viz. making appointments of direct recruits pursuant to,,,

advertisement Annexure-D, issuing gradation lists etc. shall be subject to the orders that may be passed by this Hon’ble Court;",,,

(iv) quash the advertisement Annexure â€"D advertising three vacancies for the direct recruits, who are already occupying 3 excess posts in the",,,

cadre of District Judges.â€​,,,

14. On 4.9.2009, H.P. Judicial Officers Association passed a resolution seeking enforcement of post-based roaster, following the directions of",,,

Hon’ble Supreme Court, delivered in All India Judges Association v. UOI, (2002) 4 SCC 247.",,,

15. On 4.12.2009, the petitioners withdrew the writ petition WP (C) No. 532 of 2009, and Hon’ble Supreme Court passed the following order:",,,

Learned counsel for the petitioner seeks permission to withdraw the petition with liberty to move the High Court. Permission Granted. Writ petition is,,,

dismissed as withdrawn.,,,

16. After that the petitioners moved the Administrative Side of High Court by filing a representation. In 2010, Hon'ble High Court, the 2nd respondent,",,,

constituted a committee of its three Hon'ble Judges to examine the representation. On 30.3.2010, the committee submitted its report doubting the",,,

vacancy-based roaster's correctness, that the 2nd respondent had been following. The appellants' grievance is that although the Hon'ble High Court of",,,

Himachal Pradesh corrected its mistake, and w.e.f. 30.3.2010, applied the post-based quota but did not push down the respondents 3 to 6 in the",,,

seniority list.,,,

17. On 8.3.2010, the H.P. Judicial Officers Association consisting of the officers belonging to the cadre of Civil Judges (Senior and Junior Division),",,,

filed a writ petition in this Court (CWP No. 696/2010), seeking a stay on the new appointments of Direct recruits above their quota, praying therein the",,,

following relief:,,,

“(i) that the roster system as approved in R.K. Sabharwal’s case 1995(2) SCC 745 is applicable to the appointments being made in the cadre,,,

of District Judges and the direct recruits be held to have only 8 posts in the cadre of 34 posts in view of their 25% quota, whereas the direct recruits at",,,

present are holding 11 posts beyond their quota;,,,

(ii) that the further direct recruitment be held only when the number of direct recruits is reduced below 8 from the present 11 in the cadre of 34 posts,,,

and till then, the direct recruitment may very kindly be ordered to be stopped;",,,

(iii) that any action taken by the respondents during the pendency of this writ petition viz. making appointments of direct recruits pursuant to,,,

advertisement Annexure P-4 and any other advertisement which may be issued in future, issuing gradation lists, confirming direct recruits appointed in",,,

excess of their quota etc. shall be subject to the orders that may be passed in this petition by this Hon’ble Court;,,,

(iv) quash the advertisement Annexure P0-4 advertising three vacancies for the direct recruits, who are already occupying 3 excess posts in the cadre",,,

of District Judges, beyond their quota of 8 posts;",,,

(v) Restrain the respondents no. 1 to 3 from initiating any process this year from making any further direct recruitment in excess of their quota of,,,

25%;,,,

(vi) direct the respondents no. 1 to 3 to follow the roster system of R.K. Sabharwal’s case, 1995(2) SCC 745 as approved by the Hon’ble",,,

Supreme Court in All India Judge’s Association Case, (2002) 4 SCC 247 and as contained in Rules 5 & 13 of the new Rules of 2004 Annexure P-",,,

2 (colly) while making the direct recruitment.â€​,,,

18. Vide order dated 20.4.2010, passed in All India Judges Association v. UOI, (2010) 15 SCC 170, Hon’ble Supreme Court reduced the quota of",,,

limited competitive examination from 25% to 10%, simultaneously increasing the quota by Promotion from 50% to 65%, w.e.f. 1.1.2011.",,,

19. On 15.12.2014, Appellants, along with two other officers, filed an IA no. 334 of 2014, in the Hon’ble Supreme Court seeking implementation",,,

of its judgment reported in (2002) 4 SCC 247.,,,

20. On 28.4.2016, Hon’ble Supreme Court passed the following directions, in I.A. No. 334/2014,",,,

“In this application, the applicant has come forward with two distinct prayers. The first prayer is for a direction to the respondents to create cadres",,,

of Civil Judge (Junior Division) and Civil Judge (Senior Division) with effect from 1.7.1996. It is pointed out to us that the Himachal Pradesh Judicial,,,

Officers (Pay, Allowances and Conditions of Service) Act, 2003 (hereinafter referred to as ‘the Act of 2003’) and Himachal Pradesh Judicial",,,

Service Rules, 2004 (hereinafter referred to as ‘the Rules of 2004’) have already come into force. Section 1(3) of the Act of 2003 states that",,,

the Act should be deemed to have come into force on 1 st day of July, 1996. Section 3 of the Act of 2003 reads as under: -",,,

“3. Salaries.-Notwithstanding anything contained in any rules made under any other law for the time being in force, regulating the pay, allowances",,,

and other conditions of service, or any order or judgment passed by any Court, the Judicial Officers in the State shall be paid the pay scales as",,,

specified in the Schedule and the rates of allowances and other conditions of service of such Officers shall be such as may be prescribed.â€​,,,

Section 4 of the Act of 2003 further provides, as under: - “4. (1) Subject to the provisions of section 3, the State Government may by notification in",,,

the official Gazette, make rule with retrospective effect regulating the pay, allowances and conditions of service of the Judicial Officers.â€​",,,

The cadre of Civil Judge (Senior Division) was constituted from 20th March, 2004. As per Rule 3 of the Rules of 2004 the following categorization in",,,

the cadre of Civil Judge (Senior Division) and Civil Judge (Junior Division) has been formulated. However, sub-Rule (2) of Rule 1 of the Rules of",,,

2004 states that the Rules shall come into force from the date of publication in the Official Gazette and the Gazette Publication was on 20th March,",,,

2004. In the light of the said prescription made in the Rules after the categorization was made under Rule 3(3), the grievance of the applicant has now",,,

surfaced. The grievance of the applicant, as rightly pointed out by Mr. Patil, learned senior counsel, based on their prescription contained in Section 3",,,

of the Act of 2003 read along with Section 4, even if the categorization came to be made under the Rules of 2004, the same should have been given",,,

effect to retrospectively, in consonance with the specific provisions contained in the above referred Sections 3 and 4 of the Act of 2003. We are fully",,,

convinced of the said submission so made by the learned senior counsel on behalf of the applicant(s).,,,

In such circumstances, the prescription under sub-Rule (2) of Rule 1 of the Rules of 2004 and the Gazette Publication dated 20.3.2004 cannot",,,

supersede the specific provision contained in Sections 3 and 4 of the Act of 2003, more so, when the Act of 2003 was deemed to have come into",,,

force with effect from 1st day of July,1996.",,,

In this context, it will be absolutely necessary to note what this Court has directed in paragraph 38 of the judgment rendered in All India Judges’",,,

Association and Others v. Union of India and Others reported in (2002) 4 SCC 247. the said paragraph reads as under: -,,,

“38. We are aware that it will become necessary for service and other rules to be amended so as to implement this judgment. Firstly, with regard",,,

to the pay scales, the Shetty Commission has approved the pay scales with effect from 1-1-1996but has directed the same to be paid with effect from",,,

1-7-1996. However, it will take some time for the States to make necessary financial arrangements for the implementation of the revised pay scales",,,

as approved by this Court with effect from 1-7-1996. The arrears of salary between 1-7-1996 to 30-6-2002, will either be paid in cash or the States",,,

may make the payment by crediting the same in the provident fund account of the respective judicial officers. Furthermore, the payment by creditor",,,

otherwise should be spread over between the years 1-7-1996 to 30-6-2002 so as to minimize the income tax liability which may be payable thereon. In,,,

calculating the arrears, the Government will, of course, take into account the interim relief which had been granted and drawn by the judicial officers.",,,

The amount to be credited in the provident fund account would also be after deducting the income tax payable.â€​,,,

Therefore, even applying the same the applicant is entitled for the direction asked for.",,,

In the said circumstances, the first prayer of the petitioner merits acceptance and the same is granted and the respondents are directed to create",,,

cadre of Civil Judge (Junior Division and Civil Judge (Senior Division), as prescribed under the Rules of 2004, and give effect to the same on and from",,,

1.7.1996 with all consequential benefits accrued to those officers who hold the respective cadre post as from that day.,,,

The second prayer of the petitioner is for direction to the respondents to follow “post based roster†in appointments to the cadre of District Judges,,,

with effect from 31.3.2003. The said prayer is again based on the statement of law as propounded in paragraph 49 of the above referred to decision,,,

rendered in all India Judges’ Association and Others (supra). While stating as to in what manner the 40-point roster is to be determined, this Court",,,

directed that appropriate Rules and methods should be adopted by the High Courts and approved by the States wherever necessary by 31.3.2003.,,,

When this application was moved, initially on behalf of the High Court, learned Standing Counsel took notice and submitted that in the High Court a",,,

Committee has been constituted which is deliberating on this issue, and, therefore, he will be above to report to this Court in a week’s time. It is",,,

now pointed out by Mr. Patil, learned senior counsel for the applicant(s) that the 34-point roster has been drawn by the High Court based on the cadre",,,

strength providing for different points applicable to the promotees by way of limited competitive examination as well as for direct recruits in the entry,,,

level District/Additional District and Sessions Judge. It is also brought to our notice that appropriate Rules have also been drawn by the High Court,,,

which has been notified by the State Government on 16th March, 2004. The Rules have been captioned as “Himachal Pradesh Judicial Service",,,

Rules, 2004â€​. Rule 13, which specifies as to how seniority list is to be worked out is to the following effect: -",,,

“RULE-13,,,

Seniority-(1) Where Officers are recruited to a cadre by promotion and direct recruitment seniority shall be regulated by the roster maintained for,,,

such recruitment. Officer appointed against higher point of roster shall rank senior to the Officers appointed against a lower point:,,,

Provided that no person appointed to a cadre by direct recruitment shall, for the purpose of fixation of his seniority claim any particular place in",,,

seniority unconnected with the date of his actual appointment.,,,

(2) Where more than one Officers are promoted to cadre at the same time inter-se seniority of persons so promoted shall be determined by their,,,

inters-se seniority in the lower cadre.,,,

(3) Where direct recruitment is made to a cadre, the inter-se seniority of person so recruited shall be in the order in which their names are arranged in",,,

the select list.,,,

(4) Every year in the month of January seniority list of Officers in all cadres, shall be prepared and published by the High Court and the lists so",,,

published shall be issued for the purpose of making promotions to the next higher cadres.â€​,,,

As far as the method of recruitment for the purpose of Entry Level District Judge is concerned, Explanation II, reads as under: -",,,

“Appointment to the cadre of the District Judges from categories (a), (b)and (c) shall be in accordance with 40-point roster to be maintained by the",,,

High Court in this behalf.â€​,,,

Inasmuch as, 34-point roster having been drawn by the High Court and the relevant rules relating to seniority, namely, Rule-13 has also come into",,,

effect, the only other question to be decided is as to how it should be implemented as from 31.3.2003, as directed by us in the judgment referred to",,,

above. While drawing the 34-point roster, the High Court has mentioned that the same would be followed after 31.3.2010.",,,

Having regard to the specific direction of this Court in the judgment referred to above in paragraph 23, we are of the view that it is required to",,,

ascertain as to how the 34-point roster for the three different channels are to be worked out. The High Court is, therefore, directed to apply Rule-13",,,

which prescribes as to how seniority to be drawn by applying the said Rules, ascertain the roster point for the three different categories of promotees",,,

and direct recruits and carry out the said exercise from 31.3.2003.,,,

We, however, direct the High Court to place the said report after carrying out the said exercise, to pass further orders. We only direct the High Court",,,

to carry out the said exercise within a period of two months.,,,

List on 14.7.2016.,,,

We make it clear and reiterate that we only want the outcome of such exercise to be placed before this Court before passing further orders as to its,,,

implementation.â€​,,,

21. On 14.7.2016, Hon’ble Supreme Court passed the following order:",,,

“Since, it is reported that identical prayer is subject matter of consideration in Civil Writ Petition No. 696 of 2010 titled H.P. Judicial Service",,,

Officers Association v. State of Himachal Pradesh and others, before the High Court of Himachal Pradesh, we are of the view that the parties should",,,

be relegated to work out their remedy in the said writ petition and await the outcome of the said writ petition. Adjourned.,,,

The applicant is permitted to move the High Court for expeditious hearing of the writ petition.â€​,,,

22. On 4.11.2016, the association withdrew the CWP No. 696/2010, which was pending in the High Court of Himachal Pradesh, without seeking any",,,

liberty to re-agitate the matter.,,,

23. On 25.4.2017, Hon’ble Supreme Court issued further directions, in I.A. No. 334/2014, which read as follows:",,,

“Having heard learned counsel for the parties, we request the High Court to submit the report through the counsel by second week of July, 2017.",,,

Needless to emphasis, the report of the Committee shall be in consonance with the principal judgments i.e. All India Judges’ Association and",,,

others vs. Union of India and Others (2002) 4 SCC 247 and All India Judges’ Association and Others vs. Union of India and Others (2010) 15,,,

SCC 170. We are sure that the High Court shall analyze the judgments and submit the report which will be in accord with both the judgments. When,,,

we say in accord with the judgments, the High Court will appreciate both the verdicts in letter and spirit.â€​",,,

24. After that, Hon’ble High Court constituted a committee of two Judges. In Sep 2017, the Judges Committee of the High Court of Himachal",,,

Pradesh submitted its report. On 21.9.2017, Hon’ble High Court of Himachal Pradesh, in its Full Court meeting, approved the Judge’s",,,

Committee report.,,,

25. On 9.10.2017, Hon’ble Supreme Court passed the following order in I.A.No. 334/2014,",,,

“It is submitted by Mr. P.S. Patwalia, learned senior counsel for the respondent that he would like to file an application on behalf of the direct",,,

recruits whose seniority position is affected. As this juncture, Mr. Dushyant Dave and Mr. Basava Prabhu S. Patil, learned senior counsel appearing",,,

for the applicant-promotees submit that the view taken by the High Court is in consonance with the decision in All India Judges’ Association and,,,

ors. vs. Union of India and others (2002) 4 SCC 247 and (2010) 15 SCC 170.,,,

Mr. Raju Ramachandran, learned senior counsel appearing for the High Court shall file a comprehensive affidavit with regard to the decision taken by",,,

the High Court, and also indicate whether the decision taken by the High Court is in consonance with the judgment rendered by this Court in All India",,,

Judges’ Association’s case (supra).,,,

As we understand, the issue is whether the seniority position, as claimed by the parties, has been fully covered by the earlier decision rendered by this",,,

Court and anything else remains to be done. Additionally, it will be open to the parties to assist us if there is any order passed by this Court in",,,

connection with this case or any other case.,,,

Let the matter be listed on 6.11.2017 at 2.00 P.M.,,,

A copy of the report submitted by the High Court to the Registry of this Court be handed over to the learned counsel for the parties.â€​,,,

26. After that, the present respondents 3 to 6 filed application in Hon’ble Supreme Court to be impleaded as a party. On 8.11.2017, Hon’ble",,,

Supreme Court allowed the said application.,,,

27. Vide order dated 13.3.2018, Hon’ble Supreme Court closed I.A. No. 334/2014, by holding as follows:",,,

“The issue raised in I.A. No. 334 of 2014 in Writ Petition (Civil) No. 1022/1989, as it appears to us from the materials on record, relates to the",,,

disputes inter se between the individuals/groups, which , in our considered view, would not be appropriate for determination by this Court in an I.A.",,,

(No.334 of 2014) filed in W.P.(C) No. 1022/1989 (All India Judges Association & Ors. Vs. Union of India & Ors.). We, therefore, decline to",,,

entertain the I.A. any further leaving the parties to have resort to such remedies as may be available to them in law.â€​,,,

28. On the strength of the liberty granted by Hon’ble Supreme Court, the petitioners/appellants filed separate writ petitions in the Court, dated",,,

4.9.2018 and,,,

22.9.2018 respectively, seeking identical relief, which reads as follows:",,,

(i) create the cadre of Civil Judge Senior Division w.e.f.1.7.1996 in accordance with the directions of the Hon’ble Supreme Court of Indian in All,,,

India Judges’ Association and others vs. Union of India and others (2002) 4 SCC 247 and I.A. No.334 of 2014 in Writ Petition (Civil) dated,,,

28.4.2016 and to grant consequential benefits to the petitioner.,,,

(ii) follow the post-based roster w.e.f. 31.3.2003 by following the report of the Hon’ble Judges Committees and declare the petitioner senior to,,,

respondents No.3&4 and to grant all consequential benefits to the petitioner, including considering him for elevation as Judge of High Court by placing",,,

relevant material before the competent authority.,,,

(iii) quash the seniority/gradation lists circulated w.e.f. 1.1.2005 onwards particularly gradation list Annexure P-16 circulated on 18.1.2018 showing,,,

petitioner junior to respondents No. 3 and 4, as being contrary to the directions of the Hon’ble Supreme Court of India in All India Judges",,,

Association Case (supra) and H.P. Judicial Services Rules, 2004.",,,

(iv) issue any other appropriate writ, order or direction which this Hon’ble Court may deem just and proper in the nature and circumstances of the",,,

case.,,,

29. Vide judgment dated 1.5.2019, learned Single Bench, dismissed both petitions, the relevant portions of the judgment read as follows:",,,

(33). In the sequence of events, as narrated above, it is clearly established on record that at the time when the petitioners sought to agitate the matter,",,,

it was only a stale or dead issue and it was more than settled that the issue of limitation or delay and laches has been considered with reference to the,,,

original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's,,,

direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the",,,

limitation, or erase the delay and laches.",,,

(34). The petitioners are guilty since they have acquiesced in accepting the appointment of the private respondents from the date and day they came,,,

to be appointed and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions. The petitioners",,,

lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions. Secondly, because of acquiescence and waiver on the",,,

part of the petitioners, no relief can be granted to them as this would prejudicially affect rights of the private respondents.",,,

(35). In such circumstances, there is no question why the Court should come to the rescue of such persons, when they themselves are guilty of",,,

acquiescence and waiver.,,,

(57). This Court sees no reason to interfere with stale or dead claim presented in these writ petitions relating to seniority at this distance of time in,,,

view of the observations made in P.S. Sadasivaswamy’s case, wherein the Hon’ble Supreme Court has guided that the matter of promotion",,,

and seniority should be agitated without delay and at least within six months or one year from the date of accrual of cause of action. The approach of,,,

the petitioners is found inordinately belated.,,,

(58). Thus, it would be prudent for this Court not to interfere and create multiple complications of seniority etc. and upset the settled rights of others in",,,

the cadre. The petitions as against the rights of the private respondents suffers from inordinate delay and un-explained laches.,,,

(59). This however not to suggest that law declared by the Hon’ble Supreme Court is not binding on this Court, but the manner in which the",,,

petitioners are now seeking its implementation/enforcement cannot be countenanced and the same now has to be enforced without disturbing seniority,,,

position of the direct recruits.,,,

(72). The cause of action, if any, arose to the petitioners on the dates when respondents No. 3 and 4 came to be appointed i.e. on 18.5.2004 and",,,

7.12.2006 and having failed to assail their appointments and assignment of the seniority within time frame as provided by by the Hon’ble Supreme,,,

Court in P.S. Sadasivaswamy’s case, they are not entitled to any relief(s) as claimed.",,,

(73). Since the writ petitions are being disposed of on the ground of delay and laches, acquiescence and also the clubbing of various causes of action,",,,

other preliminary objections raised by respondents N. 3 to 6 and merits of the case need not to be gone into.,,,

30. Challenging the writ petitions' dismissal, the appellants came up before this Court by filing Intra Court appeals under clause 10 of the Letters",,,

Patent of the Lahore High Court as applicable to the High Court of Himachal Pradesh. Vide judgments dated 11.03.2020, Hon'ble Justice Dharam",,,

Chand Chaudhary dismissed the LPAs, whereas, Hon'ble Mr. Justice Sureshwar Thakur allowed the same. Consequently, Ld. Division Bench",,,

directed that the matter be put up before Hon'ble Chief Justice given the dissenting judgment. After that, Hon'ble Chief Justice assigned the case to",,,

this Court.,,,

31. Shri Chirag Bhanu Singh, the 5th respondent, has filed this CMP (5772 o f2020), stating that given clause 26 of the Letters Patent, Ld. Judges",,,

were supposed to state the point upon which they differ, and after that, the case shall then be heard on that point by one or more of the other Judges,",,,

and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it. The",,,

Applicant seeks declaration that the reference to the third Judge was incomplete in the absence of stating the points of difference.,,,

The Applicant wants this Court to return the reference for framing a proper reference on the points of difference between the divergent views, and in",,,

the alternative refer the matter to Hon'ble Chief Justice to pass necessary orders in terms of Rule 5 of Appellate Side Rules for the High Court of,,,

Himachal Pradesh for constituting a full bench to hear the matter.,,,

32. I have heard the parties and have gone through the record.,,,

EXTENT TO WHICH ARGUMENTS WERE HEARD IN CWP & LPA:,,,

33. Mr. Rakeshwar Lal Sood, Ld. Sr. Advocate representing respondents 3 to 5, stated that while hearing Writ petitions and LPAs, the arguments",,,

were confined to preliminary submissions, and no arguments were addressed or heard on merits. Ld. Sr. Advocate, further stated that in the judgment",,,

authored by Hon’ble Mr. Justice Sureshwar Thakur, there is no such statement that apart from the preliminary issues; arguments were also heard",,,

on merits. He submits that as far as the merits of the case are concerned, no question arises for points of difference because the judgment authored",,,

by Hon’ble Mr. Justice Dharam Chand Chaudhary did not dwell on the merits. He further contends that as far as findings of Hon’ble Mr.,,,

Justice Sureshwar Thakur on merits are concerned, the said part of the judgment is a nullity.",,,

34. Mr. Kapil Dev Sood, Ld. Sr. Advocate, duly assisted by Ms. Shalini Thakur Advocate, representing High Court, stated at the bar that in LPA, the",,,

parties did not lead any arguments on merits and confined it to delay and latches and other preliminary submissions. He further contends that the,,,

arguments on the merits of the writ petition and the questions involved therein on the merits of the case, were not urged on behalf of the respondents,",,,

as only on the preliminary objections were heard at that stage.,,,

35. Mr. Raman Kumar Bawa, Ld. Sr. Advocate, representing petitioner/appellant Shri Rajiv Bhardwaj, contended that facts are so intermixed that",,,

arguments addressed on the preliminary issues also cover all the points, and nothing survived to be discussed on merits. He argued that Hon’ble",,,

High Court should have applied the principle of pushed down and redrawn the seniority list in the light of the directions of Hon’ble Supreme Court,,,

in All India Judges’ Association and Others v. Union of India and others, (2002) 4 SCC 247, and because Hon’ble High Court failed to",,,

implement the mandatory directions, the appellants approached this Court for implementation of the judgment.",,,

36. Mr. Shrawan Dogra, Ld. Senior Advocate representing the petitioner/appellant Mr. S.C Kainthla, contended that this Court must consider the",,,

entire matter on its merits because the foundational facts which intermingled with the preliminary facts are the implementation of the directions of,,,

Hon’ble Supreme Court passed in All India Judges’ Association and Others v. Union of India and Others reported in (2002) 4 SCC 247. Ld.,,,

Counsel states that since none can interpret or undermine the highest Court’s mandate, on the face of law declared by it, the said directions",,,

constitute the foundational facts. Therefore, there is nothing else that can be heard on merits. Mr. Shrawan Dogra further contends that delay and",,,

latches cannot form any riders for implementing the directions given by the highest Court of the land.,,,

37. The Writ petitions were listed for final hearing before learned Single Judge. A reference to order dated 28.2.2019 is required, and it reads as",,,

follows,",,,

“Arguments of the respondents on preliminary submissions/objections concluded. List for rebuttal arguments of the petitioner(s) on 01.03.2019.â€​,,,

Order dated 05.03.2019 reads as follows,",,,

Arguments on behalf of petitioner on preliminary submissions in CWP no. 2061 of 2018 concluded. Now to come up for arguments on behalf of,,,

petitioner in CWP no. 2292 of 2018, on preliminary submissions as also rebuttal arguments, on 07.03.2019.â€​",,,

Order dated 12.3.2019 reads as follows,",,,

“The petitioners have concluded their arguments. Now to come up for rebuttal arguments on preliminary objections of the respondents on,,,

15.3.2019.â€​,,,

Order dated 18.3.2019, vide which the judgment reserved reads as follows,",,,

“Arguments heard. Judgment reserved on preliminary objections raised by the respondents regarding the maintainability of both these petitions.â€​,,,

38. Vide judgment dated 1.5.2019, learned Single Bench dismissed both petitions, the relevant portions of the judgment read as follows:",,,

(3). Before arguments on the merits of the case could be heard, the learned counsel for the respondents questioned the very maintainability of these",,,

petitions by raising various preliminary objections like delay and latches, the petition being barred by provisions contained in Order 23 Rule 1, Order 2",,,

Rule 2 (3) and Section 11 CPC and the petitioners being guilty of suppressio veri and suggestio falsi etc.,,,

39. Regarding the extent of arguments covering which issues, Hon’ble Mr. Justice Dharam Chand Chaudhary clarified in the judgment in the",,,

following terms,",,,

(8). As pointed out at the very outset, since both the writ petitions have been dismissed on the grounds of delay and laches, acquiescences and also",,,

bad on account of clubbing of various causes of action, therefore, the arguments heard only qua this part of the case as learned Single Judge has not",,,

touched the merits of the case and in case the findings recorded by learned Single Judge are not ultimately found to be legally and factually sustainable,,,

on analyzing the arguments to be addressed by the parties on both sides, we may proceed further to hear this matter on merits also because the Apex",,,

Court in Roma Sonkar vs. Madhya Pradesh State Public Service Commission & anr., Civil Appeal Nos. 7400-7401/2018, decided on 31.7.2018 has",,,

deprecated the practice of remanding of case to Single Judge while holding that the Single Judge is not subordinate to the Division Bench. Also that,,,

the Division Bench in Letters Patent Appeal if sets aside the judgment of the Single Judge should not remand the same to learned Single Judge and,,,

rather decide on merits itself. Mr. R.L. Sood, learned Sr. Advocate has, however, addressed the arguments in support of the remaining undecided",,,

preliminary objections also as permission to do so was granted by vide order dated 9.8.2019 passed in CMP No. 7630 of 2019 and CMP No. 7632 of,,,

2019 filed in these appeals.,,,

ARGUMENTS ON CLAUSE 26 OF LETTERS PATENT:,,,

40. Mr. R.L.Sood Ld. Sr. Advocate contends that this Court cannot travel beyond the scope of clause 26 of the Letters Patent, wherein it was for the",,,

Division Bench, after dissent to state the points of difference. He further contends that clause 26 of Letters Patent does not empower the third judge,",,,

sitting in a single bench to cull out the points of difference and proceed to decide the reference. Such an act would read more than a statute provides,,,

and would amount to legislating, which this Court would always refrain from venturing into. He further contends that in the absence of any ambiguity",,,

in clause 26, the division bench's deficiency cannot be filled up by a single bench.",,,

41. Mr. Kapil Dev Sood, Ld. Sr. Advocate representing Hon’ble High Court, most humbly contends that there is no adjudication on merits of the",,,

cases either by the Hon’ble Single Judge or by the two Hon’ble Judges constituted to hear the Letters Patent Appeal and finding on merits by,,,

allowing the writ petition by Hon’ble Mr. Justice Sureshwar Thakur is neither the opinion of two Judges nor can amount to a difference of opinion,,,

in the judgment, and those points require to be adjudicated first before the matter is taken up for consideration on other aspects.",,,

42. Mr. R.K.Bawa, Ld. Sr. Advocates representing the Appellants/Non-Applicants contends that this Court is competent to cull out the points of",,,

difference to comply with the directions issued under Article 141 & 142 of the Constitution of India, in All India Judges’ Association and Others v.",,,

Union of India and Others, reported in (2002) 4 SCC 247. He further contends that the fault and the delay were at the end of the Hon’ble High",,,

Court.,,,

43. Mr. Shrawan Dogra, Ld. Sr. Advocate, supports the arguments of Mr. Bawa and further contends that this Court has two roles to play; the first",,,

role would be when the points of difference are not framed, and then it is incumbent upon the third Judge to cull out the points of difference. He",,,

further states that the dual role given by circumstances, assumes by doing the limited duty to cull out the points of different by merely reading both the",,,

judgments. Secondly, given the highest Court's directions, this Court must not enter into technicalities, and must proceed to cull out the points of",,,

difference and hear the entire matter. He further contends that in this flux, the Appellants, who are at the losing wickets, cannot be faulted for the",,,

factors due to which Ld. Division Bench could not state the points of difference. Their agony should not be prolonged, which would send an incredibly",,,

wrong message.,,,

44. Mr. R.K.Bawa as well as Mr. Shrawan Dogra, learned Senior Advocates have a common cause and thus, supported each other by asserting that",,,

the decision of Hon'ble Supreme Court in All India Judges' Association and Others v. Union of India and Others reported in (2002) 4 SCC 247, has",,,

created indefeasible rights in favor of the Appellants. Neither delay nor anything else can be a ground for disobedience of such directions. On failure,,,

of the Hon'ble High Court to follow proper procedures and comply with the Hon'ble Supreme Court's orders, they had no other choice except by",,,

invoking Article 226 of the Constitution of India. Both contended that it is only the petitioners whose loss will be irreversible, and a lot of time is also",,,

wasted because of the COVID-19 pandemic leading to Lockdown, consequent restrictions, and in the beginning, lack of adaptability to conduct cases",,,

through video conference. They contend that the Court should not enter into technicalities and Justice be done in the spirit of the law.,,,

ANALYSIS AND CONCLUSION:,,,

45. Clause 26 of Letters Patent constituting the High Court of Judicature at Lahore, dated 21st March, 1919, reads as follows,",,,

26. Single Judges and Division Courts.- And we do hereby declare that any function which is hereby directed to be performed by the High Court of,,,

Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof,",,,

appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division",,,

Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided",,,

according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges are equally divided, they shall state the point upon which",,,

they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion,,,

of the majority of the Judges who have heard the case, including those who first heard it.",,,

46. The Division Bench of this Court heard this matter on Letters Patent Appeals filed under clause 10 of the Letters Patent, against the decision of",,,

Ld. Single Judge. Given the dissenting judgments of both Hon’ble Judges, clause 26 defines the scope for the third Judge. However, since the third",,,

Judge is to hear the case upon the point(s) of difference the judges so stated when equally divided, while pronouncing their verdicts. Although clause",,,

26 uses the word “shall†while contemplating such equal division, and mentions that “if the Judges are equally divided, they shall state the point",,,

upon which they differ,†however, may be because the date of the pronouncement of judgment co-incidentally was the last working day of one of the",,,

Hon’ble Judges, as such, they probably did not get time to frame the points of difference.",,,

JUDICIAL PRECEDENTS:,,,

47. Relevant excerpts of the judicial precedents are being extracted to find out whether any of the decision deals with the present situation or,,,

otherwise applies to the facts and circumstances or not.,,,

48. In Mussammat Sardar Bibi v. Haq Nawaz Khan & another, AIR 1934 Lahore 371, at page 379, the full bench of Lahore High Court observed,",,,

In the case before us the points of difference between the learned Judges of the Division Bench have not been stated expressly and to this extent the,,,

reference is defective. These points are however apparent from their respective judgments, and counsel for both sides agreed before' us that it was",,,

unnecessary to remit the case to the Division Bench to have the question formally drawn up. Accordingly at the commencement of the hearing, the",,,

points requiring decision by the Bench were formulated by us, with the concurrence of both parties, as follows:",,,

49. In Firm Ladhuram Rameshwardayal v. Krishi Upaj Mandi Samiti, Shivpuri, AIR 1978 MP 10, full bench of Madhya Pradesh High Court observed",,,

as follows,",,,

[2] It is thus that the matter has come before us and the two questions which we have to answer are these: --,,,

(1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter I",,,

of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points",,,

of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were",,,

not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of",,,

the referring Bench as well as of the referee Bench?,,,

(2) When on a difference of opinion between the two Judges constituting the Division Bench, the matter is referred to a third Judge and the third",,,

Judge while expressing his opinion on the point of difference passed a final order, disposing of the matter referred to him and does not return the",,,

matter to the Division Bench, can the matter be said to be pending and can the Chief Justice suo motu order for its being listed be- fore the referring",,,

Division Bench or to some other Division Bench for disposal according to the method provided by Clause 26 of the Letters Patent?,,,

[20] In the result, we answer the two questions referred to us as follows:--",,,

(1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to a third Judge nominated by",,,

the Chief Justice under Rule 11 of Chapter I of the High Court Rules, and the third Judge, after formulating the point or points of difference of the",,,

Judges of the Division Bench, returns his opinion under Clause 26 of the Letters Patent, any other Division Bench of which one or both of the Judges",,,

were not members of the Division Bench which originally heard the case, can render the decision in accordance with the majority of the opinion of the",,,

Judges of the referring Bench and the referee Bench.,,,

(2) When on a difference of opinion between two Judges constituting a Division Bench, a matter is referred to a third Judge, the third Judge can, only",,,

express his 'opinion.' on the 'point' on which the Judges are divided in opinion. However, the third Judge cannot 'decide' that point. (He has to leave to",,,

the Division Bench to 'decide' the point as directed under Clause 26 of the Letters Patent). Nor can he enter into any other point on which the Judges,,,

of the Division Bench were not divided in opinion. If the third Judge expresses his opinion on any other point or finally decides the case as a whole, the",,,

latter part of his opinion (be it styled as 'order' or 'judgment') has to be ignored as without jurisdiction. After the third Judge has recorded his opinion;,,,

the case must be laid before the Division Bench for deciding the point or points which were referred to the third Judge according to the method,,,

provided by Clause 26 of the Letters Patent and it is at this stage that a Division Bench will finally decide the case before it. It is not the requirement,,,

of law that the case must be laid before the same Division Bench which first heard it, after it is returned by the third Judge. When one of the Judges",,,

constituting the Division Bench which first heard the case, has retired or is not otherwise available, the Chief Justice can constitute another Division",,,

Bench to decide the case according to the method provided by Clause 26 of the Letters Patent.,,,

50. In Amar Pal Singh v. Election Commission of India, AIR 1993 Del 316, Ld. Single Bench of Delhi High Court observed,",,,

[12] In this case the Judges were equally divided. They should have specifically stated the point upon which they had differed and the case could be,,,

heard on that point only by another Judge. It is obvious that hearing by another Judge is confined to the specific points stated and cannot cover the,,,

whole case again. But the order of reference in this case states that the papers may be laid before Hon'ble the Chief Justice and he may designate a,,,

third Judge to hear the matter. The learned Judges ought to have stated explicitly as to what was to be decided by a third Judge. The expression,,,

'matter' used in the reference has not been clarified as to the points to be decided by the third Judge; especially in the facts and circumstances of this,,,

case and in view of the stand taken by Mr. Bansal. In the absence of the clarification it is not possible to answer the reference.,,,

[13] In view of my above reasoning, this Bench must return the reference unanswered and without any finding. The papers may be laid before",,,

Hon'ble the Chief Justice for appropriate orders.,,,

51. In Parmanad Agarwal & ors v. Sudera Enterprises (P) Ltd, 1999 SCC Online Cal 614, Ld. Single bench of Calcutta High Court observed,",,,

Although the question of law upon which the learned Judges differed in their opinion could be deciphered from the orders passed by them but keeping,,,

in view the aforementioned submissions made at the Bar, this court is of this opinion that it is not possible for this court to formulate the points of",,,

difference in the light of a decision of the special bench of this court in Jyoti Prakash Mishra (Supra) [AIR 1965 Calcutta 483].,,,

52. In Neeraj Sharma v. Union of India, Punjab Law Reporter, Vol CXLIV-(2006-3), at page 8, Para 23, Ld. Single B Judge observed,",,,

Conclusions: For the reasons recorded above, since no point of difference seems to emerge, from the two points agitated on behalf of the applicants,",,,

on which separate deliberations have been recorded hereinabove, there is no merit in the prayer made in the instant applications, under Rule 31 of",,,

Chapter 4(F) of the High Court Rules and Orders, read with Clause 26 of the Letters Patent.",,,

53. In DLF Universal Ltd v. State Bank of India, 2012 SCC OnLine Guj 972, Ld. Single Bench of Gujrat High Court observed that in case of",,,

difference of opinion, the point of difference should be decided following the procedure referred in S. 98 of the Code of Civil Procedure and Clause 36",,,

of the Letters Patent Appeal, thus, held the reference as incompetent, and since one of the Hon’ble Judges stood transferred, referred the matter",,,

to Hon’ble Acting Chief Justice for considering whether the entire matter needed rehearing.,,,

54. In Amarendra Arya v. State of Bihar & others , LPA No. 1469 of 1995, decided on 25 Sep 2019, the full bench of Patna High Court observed,",,,

60. In view of the aforesaid, it is very much clear that in the event of difference of opinion between the members of the Division Bench, the Division",,,

Bench will record its difference of opinion and on the discretion of the Chief Justice the matter will be referred to the third Judge, either Single or",,,

Division Bench and the third Judge will confine his opinion on the point which has been referred and will not embark on the point or points not,,,

referred, but in a situation if the third Judge gives an opinion apart from the point referred, I am of the opinion that when the matter again goes to the",,,

Division Bench for final pronouncement, the majority of the opinion will be the basis for judgment on the point which was referred. But, it is also made",,,

clear that on consideration of judgment of different High Courts, it can safely be recorded that when a single issue or several issues have been raised",,,

and on few issues the Division Bench agreed and on certain issues they have differed, that issues on which there is difference, will be referred to the",,,

third Judge and the third Judge would give his opinion on the point referred, but will not have a jurisdiction to finally pronounce the judgment between",,,

the parties, but the referee Judge has only to record his opinion and remit back the same to the Division Bench and the Division Bench will formally",,,

declare the majority opinion and then the Division Bench will not start a de novo hearing on the issue which has already been concluded. The majority,,,

opinion is to be culled out and final verdict could be pronounced, as it will be a matter of declaration of final verdict, but if on any point, apart from the",,,

reference, the referee Judge gives his opinion on such point, the parties will have a liberty to address the Division Bench on new point which was not",,,

subject matter of consideration and the Division Bench will decide the new point and give the final decision on that point.,,,

55. Although, in DLF Universal Ltd v. State Bank of India, 2012 SCC OnLine Guj 972, Ld. Single Bench of Gujrat High Court observed that in case",,,

of difference of opinion, the point of difference should be decided following the procedure referred in S. 98 of the Code of Civil Procedure and Clause",,,

36 of the Letters Patent Appeal, thus, held the reference as incompetent, however, In Firm Ladhuram Rameshwardayal v. Krishi Upaj Mandi Samiti,",,,

Shivpuri, AIR 1978 MP 10, full bench of Madhya Pradesh High Court observed that it is not the requirement of law that the case must be laid before",,,

Hon’ble Justice Dharam Chand Chaudhary,Hon’ble Justice Sureshwar Thakur,,

,"8. As pointed out at the very outset, since both the writ petitions have

been dismissed on the grounds of delay and laches, acquiescences and

also bad on account of clubbing of various causes of action, therefore,

the arguments heard only qua this part of the case as learned Single

Judge has not touched the merits of the case and in case the findings

recorded by learned Single Judge are not ultimately found to be legally

and factually sustainable on analyzing the arguments to be addressed by

the parties on both sides, we may proceed further to hear this matter on

merits also because the Apex Court in Roma Sonkar vs. Madhya

Pradesh State Public Service Commission & anr., Civil Appeal Nos.

7400- 7401/2018, decided on 31.7.2018 has deprecated the practice of

remanding of case to Single Judge while holding that the Single Judge is

not subordinate to the Division Bench. Also that the Division Bench in

Letters Patent Appeal if sets aside the judgment of the Single Judge

should not remand the same to learned Single Judge and rather decide

on merits itself.","6. Even though, the judgment rendered, by, the learned

Single Judge of this Court, is, rested upon his accepting

preliminary objection(s), as, became, reared by the private

respondents concerned, hence, in their respective replies,

as, became furnished to the respective petitions, (a)

objections whereof, appertain to the writ petitions, being

hit by vices, of, delay and laches, and, also theirs being

permeated with entrenched vices of estoppel, and,

acquiescences. However, since, the emphatic nuance, of,

the afore assigned reason, is, made dependent, upon,

various citations, each carrying, a, proposition of law, vis-

a-vis, rather the completely settled, and, determined

apposite inter se seniority, being unamenable, for re-

opening, conspicuously after elapsings, of, an unduly

procrastinated period of time, since the apt contentious

inter se seniority, becoming clinched or settled. Obviously,

hence, when the afore assigned reason, by the learned

Single Judge, is, also necessarily entwined with the merits,

of, the case, (b) given his necessarily making a

concomitant conclusion, vis-a-vis, the contentious inter-se

seniority, amongst, the aggrieved appellants, and, the

private respondents, hence, becoming finally rested or

settled, (c) whereas, for, the reasons to be assigned

hereinafter, the contentious inter se seniority amongst

them, is, yet in a state of flux or is yet to be formidably

clinched, hence, thereupon, it is deemed fit to also decide,

the, entire lis engaging the parties at contest, hence, on

merits. (d) The further reason for this Court, becoming

constrained, to, allow the writ petitions, after, its

proceeding, to delve deep into the merits, of, the case,

and, to thereafter also obviously make a complete

adjudication, vis-a-vis, the contentious competing claims,

of, the contesting litigants concerned, is, sparked, by, the

factum, that, the Hon'ble Apex Court in Roma Sonkar Vs.

Madhya Pradesh State Public Service Commission an

another, Civil Appeal Nos. 7400-7401/2018, decided on

31.7.2018 (e) has deprecated the practice of remanding,

of, a lis, to, the learned Single Judge, (f) and, has also held

that the learned Single Judge, is, not subordinate to the

Division Bench, (g) besides with, a, further expostulation

of law being borne therein, that, the Division Bench, in, a

Letters Patent Appeal, if sets aside the judgment, of, the

learned Single Judge, (h) thereupon, it should not remand

the same, to, the learned Single Judge, rather should

proceed to decide the lis on merits, (i) hence, becomes the

supplemental principle, for, the undersigned, proceeding to

completely rest, the, contentious claim(s), of, the hereat

contesting litigants. Moreover, with the undersigned

accepting the report, of, the Hon'ble Judges Committee

hence, constituting, the apt facilitator, for, the making, of,

a complete adjudication, of, the, extant lis, (j) thereupon,

too, upon disapprobation, of, the, verdict, of, the, learned

Single Judge, as, has become, untenably anvilled, upon,

vices, of, delay, and, laches, rather baulking the respective

petitioners, hence, it is deemed fit, to, thereon(s) i.e. the

Hon'ble Judges Committee's report, rather finally rest the

extant lis","d

,

,

,

,

,"On analyzing rival submissions, the only question which has arisen for

consideration in these appeals is as to whether the claim as laid in the

writ petitions is not stale nor is there any delay and laches on their part

nor are they guilty of acquiescences as well as fence-sitters ?",,

,"25. Now, coming to the above question having arisen for consideration

in these appeals, it would not be improper to observe that this case has a

chequered history because the promotee officers of and on had been

espousing their claims qua seniority vis-Ã -vis direct recruits since long.

We may refer here CWP No. 61 of 1999 filed by the then H.P. Judicial

Service Association and its members i.e. the subordinate Judicial

Officers at bottom in the seniority list and also the Officers inducted to

the cadre of the then Higher Judicial Service by way of promotion

challenging therein the recruitment of direct recruits to the service. The

said writ petition remained pending in this Court till 2005 and it was

disposed of vide order dated 18.4.2005 in the following terms:

“As the hearing was in progress, Mr. Rajiv Sharma, learned Senio","7. The concurrent predominant reason, which prevailed,

upon, the learned Single Judge, and, also, upon, the,

Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge

for, both making a conjoint verdict, upon, the afore LPAs,

is, grooved, (ii) upon, a decision of the Hon'ble Apex

Court rendered in a case titled as B.S. Bajwa and another

v. State of Punjab and others, reported in AIR 1999 SC

1510, wherein, the Hon'ble Apex Court, has expostulated

that, any belated endeavours, as, made by the aggrieved,

in, challenging, the, drawing(s), of, seniority lists, cannot

be countenanced, when hence it would untenably beget

disturbing(s) or unsettling(s), of, a clinched or a finally

rrested controversy. Further thereonwards reliance, is, also",

,,,

,,,

,"counsel appearing for respondent o. 2 submitted that his client has

issued communication No. HHC/GAZ/10- 17/90-Vol-II-1933-35 date

28th January, 2005, (which is hereby taken on record by us), whereby a

gradation list of the members of H.P. Judicial Service, as it stood on

1.1.2005 was circulated. According to Mr. Rajiv Sharma, the petitioners

have not challenged the gradation list circulated along with the aforesaid

communication.

Without going into the disputed question whether in the light of various

orders passed by this Court in this case from time to time, the petitioners

were or were not required to challenge the aforesaid gradation list, we

feel that in the facts and circumstances of this case, if the petitioners

are afforded an opportunity of filing objections to the aforesaid gradation

list and making representation(s) for suitable placement/replacement of

the persons covered therein, and if such objections and representations

are considered by respondent No. 2, on their merits and in accordance

with law, and disposed of within a reasonable time, the interests of all

the parties shall be suitably protected. On this suggestion coming from

the Court, Mr. Mattewal, learned Senior Counsel appearing for the

petitioners submits that the petitioners are in absolute agreement with

this suggestion and that they would withdraw this Writ petition with

liberty to submit representation(s) and filing objection to the aforesaid

gradation list and request the High Court on its administrative side to

consider such objections/representations on their merits and in

accordance with law and to order re-location/replacement of the

persons concerned in the aforesaid gradation list. Mr. Anand Sharma,

learned counsel appearing for respondent No. 3 and Mr. Shrawan

Dogra, learned counsel appearing for respondent No. 4 also have no

objection to this course being adopted.

Mr. Rajiv Sharma, submits and undertakes before us that if the

petitioners indeed file objections and submit representations against the

aforesaid gradation list, the High Court on its administrative side shal

consider such objection(s)/representation(s0 and dispose them of in

accordance with law and on their merits within the shortest possible

time, preferably within 2-3 months.

Based on the aforesaid agreement between the parties, the Writ petition

is disposed of as settled. We pass the following order and issue

hereinbelow mentioned directions:-

1. Only in so far as the placement of direct recruited Additional District

Judges in he aforesaid gradation list is concerned (and for no other

reason or ground), it shall be open to petitioner No. 1 as well as other

aggrieved Officers, if any, to file objections or make representations

against their alleged improper placement and for seeking

rectification/redressal of grievances. Such objections shall be filed and

such representations shall be made, if any, latest by 30th April, 2005.

2. The High Court on its administrative side shall receive the aforesaid

objections/representations, process the same, examine and consider

them on their merits and dispose them of in accordance with law.

3. If in the process of consideration, the High Court feels that anyone

whose name has been included in the aforesaid gradation list needs to

be displaced to a lower position, an opportunity of being heard shall be

afforded to such person but only through the mechanism of a written

representation. No such person shall have any right of a personal

hearing.

4. The High Court on its administrative side shall take a final decision in

the aforesaid matter on its merits and I accordance with law as

expeditiously as possible and in any case by 31st July, 2005.

5. If anyone feels aggrieved by the decision of the High Court, it shall be

open to such person to approach this Court again on the judicial side.

In view of the aforesaid order, no earlier representation filed on the

subject by any one shall be entertained. All such earlier representations

shall be consigned to records without taking any action thereupon.

Since this Writ petition is being disposed of as settled in the light of the

aforesaid agreement between the parties, we wish to clearly place on

record that we have not gone into any question relating to the merits of

the controversy between the parties nor have expressed any opinion

with regard thereto. All questions and issues are left open.â€​","conjointly placed, by the learned Single Judge, and, by one

dof us (Hon'ble Mr. Justice Dharam Chand Chaudhary, J.),

upon, a judgment of the Hon'ble Apex Court, rendered in

a case titled, as, Bimlesh Tanwar vs. State of Haryana

and others, reported in (2003)5 SCC

604, (i) wherein, it has been propounded, vis-avis, claims,

of, seniority not being a fundamental right, rather being

merely, a, civil right. Furthermore, it has also been

expostulated therein, that, inter se seniority, of, all

candidates, who are appointed, on the same day, would be

dependent, on, the rules governing the same, and, that in

the absence of rules governing seniority, an executive

order, may be issued, to, fill up the gap.

8. However, the decision of the Hon'ble Apex Court, as

rendered in a case titled, as, B.S. Bajwa and another v.

State of Punjab and others, and, reported in AIR 1999 SC

1510, for, hence detailed/ad nauseam reasons assigned

hereinafter, is, applicable, only, upon, the contentious

seniority becoming finally settled or it becoming

conclusively rested, (a) and, obviously it becomes

inapplicable, as hereat, upon, the contentious seniority

list(s), as prepared, vis-a-vis, the contesting litigants

concerned, being, yet in a state of flux, or it remaining

unsettled, rather, it remaining not finally clinched.

Moreover, the decision of the Hon'ble Apex Court

rendered, in, a case titled as Bimlesh Tanwar vs. State of

Haryana and others, reported in (2003)5 SCC 604, is also

rendered inapplicable, vis-a-vis, the factual matrix

prevailing hereat, given, the reasons assigned hereinafter,

rather making palpable disclosures, vis-a-vis, the verdict

lrendered by the Hon'ble Apex Court, in a case titled, as,

All India Judges' Association & Ors vs. Union of India

reported in (2002)4 SCC 247, hence, becoming

acquiesced, to, be breached, (b) whereas, it constitutes

the settled inflexible, and, inviolable norm(s), for,

determining the contentious inter se seniority, amongst, all

the competing incumbents. Re-emphasisingly, it,

underscores, the, necessity, of, induction(s) into service,

of, the inductees concerned, rather only , upon, the apt

strictest adherence(s) being recoursed, vis-a-vis, the

therein(s) expostulated norm, of, “post based rosterâ€,

and, not in consonance, with, the adopted hereat, invalid

norm of, “vacancy based rosterâ€. Unhesitatingly, and,

apart therefrom also uncontrovertedly, uptill now, (c)

given, the stand projected, by, the High Court in its reply,

and, also given the displays made, in, the minutes drawn in

the year 2010, by the Hon'ble Judges Committee,displays

whereof rather with utmost candour, exemplify vis-a-vis,

the, High Court, explicitly acquiescing, vis-a-vis, the afore

regulatory mechanism, for, induction into service, to, the

post of Addl. District Judge(s)/District Judge(s), hence

becoming breached, (d) thereupon, the afore acquiesced

factum, does necessarily, beget, a, further corollary, vis-a-

vis, the afore expostulated canon, being transgressed. The

relevant portion, of, the report of the Hon'ble Judges

Committee, as, drawn in the 2010, reads as under:

“After coming into force of the new Rules, the cadre

strength has got increased to 34. Now as per extant Rules

half of the posts are to be manned by promotees, 1/4th by

recruitment from amongst the Civil Judges (Senio

Division), on the basis of Limited Competitive

Examination and the remaining 1/4th by way of direct

recruitment from amongst the practicing Advocates. The

posts are to be manned by the persons from three

sources, on Post Based Roster. 34-point Roste

(Annexure-B) is required to be maintained.

As per 34-Point Roster, first two posts are to be manned

by promotees, third by the Civil Judge (Senior Division

selected on the basis of Limited Competitive Examination

and, the fourth by direct recruitment from amongst the

practicing Advocates, and similarly fifth and sixth posts by

the promotees, seven post by the Civil Judges (Senio

Division), on the basis of Limited Competitive

Examination, and, the eighth post by direct recruit from",",

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,"26. Consequent upon this order, representations were made by the

members of H.P. Subordinate Judicial Service including the Judicia

Officers similarly situated to the petitioners, which were considered by

the Judges’ Committee and recommended to be rejected. The High

Court has accepted the report of the Judges’ Committee in its

meeting held on 21.9.2017. Subsequently, the order of rejection was also

conveyed to the representationists. Though, in the order ibid passed in

CWP No. 61 of 1999, liberty was granted to the representationists in

case their representations rejected by the High Court on administrative

side, however, they opted for not challenging the order of rejection of

their representation(s).","amongst the practicing Advocates, and so on. This way

lout of the total cadre of 34, 18 posts are required to be

manned by promotees, 8 by members of Judicial Service

selected on the basis of Limited Competitive Examination

and the remaining 8 by direct recruitment from amongst

the practicing Advocates.

However, after coming into force of the extant Rules, we

have been following the vacancy based roster, that is to

say that we have been rotating the vacancies in the ratio

of 2:1:1, amongst the promotees, Officers selected by

Limited Competitive Examination, and, direct recruits

from amongst the practicing Advocates, correctness of

which is doubtful.â€​

9. Succor and support is also drawn, by one, of, us

(Hon'ble Mr. Justice Dharam Chaudhary, J.), for, his

concluding, that, the petitioners/appellants' belated

apposite challenge, rather warranting its being

discountenanced, hence, from, a decision, of, the Hon'ble

Apex Court, rendered in a case titled as K.R. Mudgal and

others vs. R.P. Singh and others, reported in AIR1986 SC

2086, besides also from a decision, of, the Hon'ble Apex

Court rendered, in, a case titled as Shiba Shankar

Mohapatra and others vs. State of Orissa and others,

reported in (2010)12 SCC 471, (i) wherein, it has been

expostulated, that, the controversy appertaining to the

seniority, of, the litigants therein, was amenable rather for

declinings, as, the apposite agitations happened, hence, at

a belated stage, and, further that the Courts exercising

public law jurisdiction, rather not encouraging agitations,

of, stale claims, especially where the right of third parties

hence crystallise, in, the interregnum. However, with all

firmness, and, formidability, the afore verdicts are again

applicable only qua settled, and, finally determined

seniority lists, as, made in consonance, with, the then

prevailing rules, guidelines or executive instructions, and,

reiteratedly are inapplicable hereat, as, the apposite lis

remains extantly both unsettled, and, unclinched. Even

further thereonwards, in a verdict rendered, by, the

Hon'ble Apex Court in Shiba Shankar Mohapatra's case

(supra), the Hon'ble Apex Court, dehors, any statutory

Rules, for, determining the inter-se seniority, of, the

contesting litigants therein, had deemed it, not to disturb

the uninterrupted practice, of, the State, in, preparing, the,

inter-se seniority list, of, the officers concerned, and,

obviously hence had thereafter concluded, that, when, the,

reckoning(s) or the concomitant rankings, in, the seniority

list, of, the contesting litigants therein, hence, remained

unchallenged rather within, a, reasonable period, of, time,

hence since its drawing, (ii) thereupon, the aggrieveds'

challenge, became hit by, the, baulkings vices, of, delay,

and, laches, (iii) especially when no good and tangible

ground, was, coming forth, in, explication, of, the delay, in,

challenging the seniority list, (iv) necessarily hence, both

the afore verdicts, cannot supersede, the, verdict, of, the

Hon'ble Apex Court rendered, in, a case titled as All India

Judges' Association & Ors vs. Union of India, reported in

(2002)4 SCC 247, and, also cannot withstand the clout, of

the, apposite mandatory governing rules, hence,

wherefrom, the, inter se disputed seniority, of, the

contesting litigants, has, yet to be determined. The

gravamen of the afore conclusion is formed obviously,

upon, the factual matrix prevailing, in, the afore alluded

judgment(s), as, rendered by the Hon'ble Apex Court

and, with the factual contentious matrix borne, in, the

extant case, hence being completely and diametrically

contradistinct, rather therefrom, inasmuch, as, it being

fully dependent solitarily, upon, the verdict (supra),

thereupon, also it would be unbefitting, to, draw any",",

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,"36. Anyhow, the application IA No. 334 of 2014 when ultimately came

to be listed before the apex Court on 13.3.2018 after the High Cour

filed the report and also the affidavit in terms of order dated 9.10.2017,

following order (Annexure P-15) came to be passed therein: “The

issue raised in I.A. No. 334 of 2014 in Writ Petition (Civil) No. 1022 o

1989, as it appears to us from the materials on record, relates to the","succor therefrom.

10. The Hon'ble Apex Court, in, a verdict rendered in a

tcase titled, as, Direct Recruit Class II Engineerin

Officers' Association vs. State of Maharashtra and

others, reported in (1990)2 SCC 715, has in paragraphs

fNo. 47 (D) and 47(E) thereof rather held:- “47. To

sum up, we hold that:-",

,,,

,,,

,"disputes inter se between the individuals/groups, which, in our

considered view, would not be appropriate for determination by this

Court in an I.A. (No. 334 of 2014) filed in W.P. (C) No. 1022/1989 (Al

India Judges Association and others v. Union of India and other). We,

therefore, decline to entertain the I.A. any further leaving the parties to

have resort to such remedies as may be available to them in law. I.A.

No. 334 of 2014 in Writ Petition (Civil) No. 1022/1989 is disposed of in

the above terms.â€​

37. It is thus seen from the order ibid that the apex Court has declined to

entertain the interim application keeping in view the disputes inter se

between the individuals/groups raised therein and it was left open to the

parties to resort to remedies available to them in accordance with law.

Therefore, I.A. No. 334 of 2014 was unsuccessfully pursued by the

petitioners in the Hon’ble Apex Court.

38. Now if coming to the order dated 14.7.2016 (Annexure R-3/F

passed in this application and reproduced hereinabove though it was

observed that in view of CWP No. 696 of 2010 pending in this Court

the apex Court deemed it proper to relegate the parties to work out their

remedy in the said writ petition and await the outcome thereof. The

petitioners, however, have not opted for pursuing the writ petition any

further or approached the High Court with a prayer to hear the same at

an early date and rather sought the permission to withdraw the same on

4.11.2016. The order annexure R-3/K to the reply filed on behalf of

respondents No. 3 to 6 reveals that learned counsel representing the

petitioners on instructions had sought the permission unconditionally to

withdraw the writ petition and the permission so sought was opposed by

the private respondents herein on the ground that certain rights have

accrued in their favour in view of the orders passed by this Court from

time to time. This Court, however, without going into such contentions

permitted the petitioners to withdraw the writ petition and rightly so

because the same was sought to be withdrawn unconditionally.

Therefore, irrespective of the apex Court directed the petitioners to

pursue their remedies in accordance with law. Instead of doing so, they

did not opt to do so and even writ petition No. 696 of 2010 was also

withdrawn lateron unconditionally.

39. After the Apex Court declined to entertain I.A. No. 334 of 2014 an

disposed of the same vide order Annexure P-15 dated 13.3.2018 by

leaving it open to the parties to resort to such remedies as may be

available to them in accordance with law. It is these writ petitions which

have now been filed only by the petitioners and as regards the Officers

similarly situated and identically placed to them in the cadre, they have

not joined them (the writ petitioners) as party in these writ petitions. The

similarly situated Officers in the cadre are either satisfied with the

seniority assigned to them or may approach after final outcome of these

writ petition if need for them to do so arises because the discussion

hereinabove reveals that different set of the Judicial Officers/promotees

have challenged the direct recruitment to the cadre and also the inter se

seniority in this Court and also the Apex Court as per their convenience,

of course, unsuccessfully. In the given facts and circumstances as

discussed hereinabove if it is not a case of acquiescence of claims, what

else is any other inference which can be drawn therefrom. The present

is, therefore, a case where the petitioners have acquiesced their claims

and as such, have no right to claim the seniority over and above the

private respondents.","(D) If it becomes impossible to adhere to the exising

quota rule, it should be substituted by an appropriate rule

lto meet the needs of the situation. In case, however, the

quota rule is not followed continuously for a number of

years because it was impossible to do so the inference is

irresistible that the quota rule had broken down. (E)

Where the quota rule has broken down and the

appointments are made from one source in excess of the

quota, but are made after following the procedure

prescribed by the Rules for the appointment, the

appointees should not be pushed down below the

appointees from the other source inducted in the service a

later date.†Though, with immense fortifying vigour,

dependence, is, made thereon, by, the private respondents

concerned, to, contend qua even, if their induction into

service, is, in excess, of, the afore norms, as, become

)prescribed, in, a case titled as All India Judges'

Association & Ors vs. Union of India, reported in (2002)4

,SCC 247, (i) yet they are not amenable, for, theirs being

pushed down below, the, appointees drawn from other

valid source(s), hence subsequent, to their induction into

service. However, even the afore dependence, as, made

thereon, is, rendered extremely frail, and, also becomes

completely enfeebled, through, the imperative diktat

rendered, by, the Hon'ble Apex Court, in, a case titled as

All India Judges' Association & Ors vs. Uniono f India,

reported in (2002)4 SCC 247, besides, through

categorical directions rendered, upon, the High Court, of

H.P., by the Hon'ble Apex Court, in, IA No. 17/2011 in

IA No.244/2009 and IA Nos. 1 & 2 in IA Nos. 17/2011 in

IA No.244/2009 and IA Nos. 334/2014, IA Nos. 335, 336,

337, 338/2015 and IA No. 339 & 341/2016, on 28.4.2016

the relevant portion whereof reads, as, under:- “In as

much as, 34 point roster having been drawn by the High

Court and the relevant rules relating to seniority, namely,

Rule-13 has also come into effect, the only other question

to be decided is as to how it should be implemented as

from 31.3.2003, as directed by us in the judgment referred

dto above. While drawing the 34 point roster, the High

Court has mentioned that the same would be followed

after 31.3.2010.

Having regard to the specific direction of this Court in the

judgment referred to above in paragraph 23, we are of the

view that it is required to ascertain as to how the 34 point

roster for the three different channel are to be worked

out. The High Court is, therefore, directed to apply Rule

13 which prescribes as to how the seniority to be drawn

by applying the said Rules, ascertain the roster point for

the three different categories of promotees and direct

recruits and carry out the said exercise from 31.3.2003.â€

(a) wherein the Hon'ble Apex Court, has, cast an

inflexible mandate, upon, this Court, to, apply the afore

Rule 13, strictly in consonance, with, the verdict of the

Hon'ble Apex Court, rendered in a case titled as All India

Judges' Association & Ors vs. Union of India, reported i

(2002)4 SCC 247, to, hence for therefrom, it making

determination(s), of, the inter se seniority, of, the

inductees, into, the rank or post of Addl. District

Judge(s)/District Judge(s), and, who become drawn

thereinto, from, the afore contemplated streams or

channels. The inviolability of the afore imperative diktat,

as afore stated, has been acquiesced, to be breached, in,

the afore report, of, Hon'ble Judges Committee, and

when rather in pursuance thereto, the other Two Hon'ble

Judges Committee of this Court, comprising Hon'ble Mr

Justice Sandeep Sharma, J., and, Hon'ble Mr. Justic

Vivek Singh Thakur, J., has, in completest deference

thereto, hence, made anad nauseam prescription, for,

determining or settling the inter se seniority, of, the

inductees, to, the posts of Addl. District Judge(s)/Distric

Judge(s), (i) whether appointed, from, the direct recruits,

(ii) or from amongst the Civil Judges (Senior Division),

(iii) besides from the category(ies) appertaining, to, the

Limited Competitive Examination, (iv) thereupon, the

afore report, of, the abovesaid committee, does warrant,

qua hence the deepest deference being meted thereto",",

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,"40 Now , if coming to the second limb of arguments addressed on behalf

of the writ petitioners, no doubt the apex Court in All India Judges’

Association & ors. vs. Union of India, (2002) 4 SCC 247 has held a

under:

41. One of the method of avoiding the seniority dispute, as per direction

of the Apex Court is to apply quota in relation to posts and not in relation

to vacancies. Further direction to the High Courts was to frame prope

rules and methods by 31.3.2003. It is consequent upon such direction of

the Apex Court, respondent No. 1 in consultation with the High Court o

Himachal Pradesh has framed H.P. Judicial Service Rules, 2004.

42. On and after coming into force the Rules, the recruitment to the

Judicial Service in the cadre of District/Addl. District Judges is bein

made strictly in terms thereof. True it is that instead of following

“post based roster†as directed by the Apex Court in Judges’

Association case, respondent No. 2 continued to follow “vacancy

based roster†up to 31.3.2010. The matter with regard to following the

“post based roster†or “vacancy based roster†came to be

considered by a Committee of the Judges of this Court which has given

its report dated 30.3.2010, Annexure P-9 to CWP No. 2061 of 2018. I

has been noticed in the report that after coming into force 2004 Rules,

respondent No. 2 is still following “vacancy based roster†i.e. the

rotation of the vacancies in the ratio of 2:1:1 amongst promotee,

selection made by limited competitive examination and direct

recruitment from amongst the practicing Advocates. The Judges’

committee, therefore, had every suspicion qua the correctness of

following “vacancy based roster†and as such recommended that in

future respondent No. 2 should follow the “post based rosterâ€. The

vacancies in existence on 30.3.2010 when the report Annexure P-9 was

submitted was, therefore, recommended to be filled by way of applying

the “post based rosterâ€. The report Annexure P-9 when taken up

for consideration by the Full Court was approved and as such on and

w.e.f. 31.3.2010, respondent No. 2 is following the “post based

rosterâ€​

43. True it is that respondent No. 2 was following “vacancy based

roster†contrary to the direction of the Apex Court in Judges’

Association case (supra), however, respondent No. 2 when detected

such mistake has taken a decision to follow the “post based rosterâ€

in the matter of recruitment to the cadre of District/Addl. District &

Sessions Judges and even stopped the recruitment from direct category

candidates till the promotees and the Sr. Civil Judges eligible for

accelerated promotion gets their quota fulfilled. Now, respondent no. 2

is following the “post based rosterâ€. All the 3 categories i.e.

promotees, eligible Sr. Civil Judges under the limited competitive

examination and the direct recruits are being provided their respective

quota and there is no complaint in this regard.","4. Shri S.C. Kainthala belongs, to, the apposite feede

category of Civil Judge (Senior Division), qua wherewith

sa 50% quota is prescribed, for, promotion, to, the post

District Judge/ Additional District Judge , hence, on the

apposite contemplated principle, of, merit-cum-seniority,

(a) and, also upon the passing(s), of, suitability test(s), as

may be prescribed, and, conducted, by, the High Court, in,

raccordance with the regulations. However, Mr. Rajeev

Bhardwaj, belongs to the category, of, limited competitive

fexamination(s), as, ordained to be conducted, from,

amongst the cadre, of, Civil Judges (Sr. Division), vis-a-

vis, the promotional post, of, District Judge/Addl. Distric

Judge, and, qua wherewith, a, 25% quota is prescribed.

gHowever, the private respondents, belong to the category,

of, direct recruitees or from the envisaged stream(s), of,

eligible advocates, and, qua wherewith, a, 25% quota is

prescribed, for their induction(s), as, Additional District

Judge(s)/District Judge(s).

5. Apart from the afore imperative necessity, hence, of

textracting the afore apposite Rule, for, therethrough

making determination, vis-a-vis, the competing claim(s),

of, the writ petitioners, and, of, the private respondents

concerned, and, as, appertaining to their inter se seniority,

(a) also, the apposite Rule 13, of, the Rules and

Regulations, of, H.P. Judicial Services, rather, besides

therealongwith regulating, the, hereat res controversia,

hence, for, therethrough(s) reckoning their inter se

seniority, does necessarily, enjoins its extraction. The apt

underlined portion, of, Rule 13, of, the Rules and

Regulations of the H.P. Judicial Services, reads as under:-

“13. Seniority:- (1) Where officer are recruited to a

cadre by promotion and direct recruitment, seniority shall

be regulated by the roster maintained for such

recruitment. Officer appointed against higher point of

roster shall rank senior to the officer appointed a lower

point. Provided that no person appointed to a cadre by

direct recruitment shall for the purpose of fixation of his

seniority claim any particular place in seniority

unconnected with the date of his actual appointment. (2)

where more than one Officers are promoted to cadre at

the same time inter-se seniority of persons so promoted

shall be determined by their inter-se seniority in the lower

cadre. (3). Where direct recruitment is made to a cadre,

the inter-se seniority of persons so recruited shall be in

the order in which their names are arranged in the select

list. (4) Every year in the month of January seniority list

of officers in all cadres shall be prepared and published by

the High Court and the lists so published shall be issued

for the purpose of making promotions to the next higher

cadres.†Moreover, the verdict rendered by the Hon'ble

Apex Court in a case titled, as, All India Judges

Association & Ors vs. Union of India, reported in (2002)4

SCC 247, also is the prima donna reckoner, for, the

requisite purpose. In the verdict supra, the hon'ble Apex

Court has rendered explicit directions, upon, all the High

Courts concerned, to specify the quotas, in, relations to

posts, and, not in relation to vacancies. Further

thereonwards it has also been mandated therein, that, the

afore quotas shall constitute, the, regulatory mechanism,

hence, for settling all disputes arising, amongst, the

competing litigants' claims, vis-a-vis, their contentious

inter-se seniority, upon, theirs respectively becoming

inducted against the post, of, Additional District

Judge(s)/District Judge(s), from amongst, the stream, of

direct recruits, and, from the afore apposite alternative

thereto channels or streams, of, Civil Judges (Senio

Division). However, the afore expostulation of law borne

in All India Judges' Association & Ors vs. Union of India

reported in (2002)4 SCC 247, has been directed, to, hold

only prospective effect, and, also a further mandate, is,

borne therein, vis-a-vis, the seniority of the apposite

inductees, into, service, as, Addl. District Judge(s)/Distric

Judge(s), especially prior to 31st March, 2003, even if",

,,,

,,,

,,"their respective inductions thereto, is, in excess of the

apposite quota, rather not ordaining any disturbances or

unsettling(s). The relevant paragraphs No.27, 28 and 29

of, the verdict supra rendered, by, the Hon'ble Apex

Court, reads as under:- “27. Another question which

falls for consideration is the method of recruitment to the

posts in the cadre of higher judicial service i.e., District

Judges and Additional District Judges. At the presen

moment, there are two sources for recruitment to the

higher judicial service, namely, by promotion from

amongst the members of the sub-ordinate judicial service

and by direct recruitment. The subordinate judiciary is the

foundation of the edifice of the judicial system. It is,

therefore, imperative, like any other foundation, that it

should become as strong as possible. The weight on the

judicial system essentially rests on the subordinate

judiciary. While we have accepted the recommendation

of the Shetty Commission which will result in the increase

in the pay scales of the subordinate judiciary it is at the

same time necessary that the judicial officers,

hardworking as they are, become more efficient. It is

imperative that they keep abreast of knowledge of law

and the latest pronouncements, and it is for this reason

that the Shetty Commission has recommended the

establishment of a judicial academy which is very

necessary. At the same time, we are of the opinion that

there has to be certain minimum standards, objectively

adjudged, for officers who are to enter the higher judicial

service as Additional District Judges and District Judges.

While we agree with the Shetty Commission that the

recruitment to the higher judicial service i.e., the District

Judge cadre from amongst the advocates should be 25

per cent and the process of recruitment is to be by a

competitive examination, both written and viva voce, we

are of the opinion that there should be an objective

method of testing the suitability of the subordinate judicial

officers for promotion to the higher judicial service.

Furthermore, there should also be an incentive amongst

the relatively junior and other officers to improve and to

compete with each other so as to excel and get quicker

promotion. In this way, we expect that the calibre of the

members of the higher judicial service will further

improve. In order to achieve this, while the ratio of 75 per

cent appointment by promotion and 25 per cent by direct

recruitment to the higher judicial service is maintained, we

are, however, of the opinion that there should be two

methods as far as appointment by promotion is concerned

: 50 per cent of the total post in the higher judicial services

must be filled by promotion on the basis of principle of

merit-cum-seniority. For this purpose, the High Courts

should devise and evolve a test in order to ascertain and

examine the legal knowledge of those candidates and to

assess their continued efficiency with adequate

knowledge of case law. The remaining 25 per cent of the

posts in the service shall be filled by promotion strictly on

the basis of merit through the limited departmental

competitive examination for which the qualifying service

as a Civil Judge (senior division) should be not less than

five years. The High Courts will have to frame a rule in

this regard. 28. As a result of the aforesaid, to

recapitulate, we direct that recruitment to the higher

judicial service i.e., the cadre of District Judge will be: [1]

(a) 50 per cent by promotion from amongst the Civil

Judges (senior division) on the basis of principle of merit-

cum-seniority and passing a suitability test; (b) 25 per cent

by promotion strictly on the basis of merit through limited

competitive examination of Civil Judges (senior division)

having not less than five years qualifying service; and (c)

25 per cent of the posts shall be filled by direct

recruitment from amongst the eligible advocates on the

basis of the written and viva voce test conducted by

respective High Courts. [2] Appropriate rules shall be

framed as above by the High Courts as early as possible.

29. Experience has shown that there has been a constant

discontentment amongst the members of the higher

judicial service in regard to their seniority in service. For",",

t

,,,

,,,

,,"over three decades, large number of cases have been

instituted in order to decide the relative seniority from the

officers recruited from the two different sources, namely,

promotees and direct recruits. As a result of the decision

today, there will, in a way, be three ways of recruitment

to higher judicial service. The quota for promotion which

we have prescribed is 50 percent by following the

principle ""merit-cum-seniority"" 25 percent strictly on merit

by limited departmental competitive examination and 25

per cent by direct recruitment. Experience has also

shown that the least amount of litigation in the country,

where quota system in recruitment exists, in so far as

seniority is concerned, is where a roster system is

followed. For example, there is, as per the rules of the

Central Government, a 40-point roster which has been

prescribed which deals with the quotas for Scheduled

Castes and Scheduled Tribes. Hardly, if ever, there has

been a litigation amongst the members of the service after

their recruitment as per the quotas, the seniority is fixed

by the roster points and irrespective of the fact as to

when a person is recruited. When roster system is

followed, there is no question of any dispute arising. The

40- point roster has been considered and approved by this

Court in R.K. Sabharwal and Ors. v. State of Punjab

One of the methods of avoiding any litigation and bringing

about certainty in this regard is by specifying quotas in

relation to posts and not in relation to the vacancies. This

is the basic principle on the basis of which the 40-point

roster works. We direct the High Courts to suitably

amend and promulgate seniority rules on the basis of the

roster principle as approved by this Court in R.K

Sabharwal's case (supra) as early as possible. We hope

that as a result thereof, there would be no further dispute

in the fixation of seniority. It is obvious that this system

can only apply prospectively except where under the

relevant rules seniority is to be determined on the basis of

quota and rotational system. The existing relative seniority

of the members of the higher judicial service has to be

protected but the roster has to be evolved for the future.

Appropriate rules and methods will be adopted by the

High Courts and approved by the States, wherever

necessary by 31st March, 2003.â€​",".

.

,

,

i

,"44. There is no quarrel so as to law laid down by the Apex Court and

cited on behalf of the petitioners in M.S. Sandhu & another vs. State o

Punjab & others (2014) 6 SCC 514, Narinder Singh vs. Surjit Sing

(1984) 2 SCC 402, M/S Shenoy & Co. represented by its partner Bel

Srinivasa Raoa Street Bangalore and others vs. Commercial Tax

Officer, Circle II, Bangalore and others, (1985(2) SCC 512, Spencer &

Company Ltd. And another vs. Vishwadarshan Distributors Pvt. Ltd. &

others (1995)1 SCC 259, M/S BayerI ndia Ltd. And others vs. State o

Maharashtra & others (1993) 3 SCC 29 and U.P. Pollution Contro

Board & ors. vs. Kanoria Industrial Ltd. And another (2001) 2 SCC

549, that the judgments/orders passed by the Apex Court are binding on

all the Courts, including the High Courts in India. Therefore,t he

judgment passed by the Apex Court in Judges’ Association case is

binding on this Court and in compliance thereto, respondent No. 2 has

framed 2004 Rules accordingly. The said respondent even is following

the Rules in the matter of recruitment to the H.P. Judicial Service

comprising Civil Judges, Sr. Civil Judges and District/Addl. District &

Sessions Judges on and w.e.f 20.3.2004. However, in the matter of

recruitment to the cadre of District/Addl. District & Sessions Judges

“vacancy based roster†continued to be followed by way of an

inadvertent mistake till 31.3.2010. When such mistake came to the

notice of the said respondent, it has been rectified and on and w.e.f.

31.3.2010, the said respondent is following the “post based rosterâ€.

In order to bring the quota meant for direct recruits as prescribed under

the Rules at par the recruitment from this category was stopped and the

posts in existence as on 31.3.2010 have been filled up by way of

promotion from amongst eligible Sr. Civil Judges/by way of accelerated

promotion. Therefore, the loss on account of inadvertent mistake

attributed to respondent No. 2 either caused to promotee or the eligible

Sr. Civil Judges by way of accelerated promotion has now been made

good. The direct recruits had also to suffer as their recruitment stopped

till each category gets its quota.","14. Emphasisingly, the, contra therewith rather hence

fdecision, rendered, by, the Hon'ble Apex Court, in, a, case

htitled, as, All India Judges' Association & Ors vs. Union

eof India, reported in (2002)4 SCC 247, hence prescribing

the, adoption, of, a “Post Based Rosterâ€, rather than

of a “Vacancy Based Rosterâ€, for, all relevant

purposes, is, the perennial governing rule, for the

fcontentious purpose, (a) whereas, the latter inappropriate

lmechanism becoming acquiesced, to become recoursed,

by, this Court, for assigning, the, inter se seniority

amongst, the, contesting litigants concerned, thereupon,

adoption(s) thereof, become wholly unvindicable.

Moreover, with the verdict supra constituting, a, judgment

in rem, also bolsters an inference, qua, it purveying, a

recurring, and, continuous cause(s), of, action, vis-a-vis,

all the aggrieved concerned, to, ensure qua, the,

mechanism contemplated therein, hence, for the requisite

purpose, becoming completely recoursed, by, the High

C, ourt, (b) thereupon, upon, its evident acquiesced non-

recoursing, and, also dehors, the earlier unsuccessful

challenges, as, raised by the petitioners, through, the

Judicial Officers' Association, rather not begetting against

them any, estopping inference(s), of, waivers,

acquiescence, and, abandonments, (c) nor also the hereat

belated challenge, vis-a-vis, the gradation lists, wherein,

theirs names occur below, the private respondents, would

adversarially work against them, merely on anvil of vices,

of, delay, and, laches, hence purportedly operating against

them. Immense fortification, to, the afore view, is,

garnered, from, a, decision of the Hon'ble Apex Court,

rendered, in, a case titled as Fazlunbi vs. K. Khader Val

and another, reported in (1980)4 SCC 125, the relevant

paragraphs No.7 to 10 whereof, stand extracted",

,,,

,,,

,,"hereinafter:- “7. We need not labour the point because

this Court has already interpreted Section 127(3)(b) in Ba

Tahira and no judge in India, except a larger bench of the

Supreme Court without a departure from judicial discipline

can whittle down, wish away or be unbound by the ratio

thereof. The language used is unmistakable, the logic at

play is irresistible, the conclusion reached is inescapable,

the application of the law as expounded there is an easy

task. And yet, the Division Bench, if we may with respect

say so, has, by the fine art of skirting the real reasoning

laid down 'unlaw' in the face of the law in Bai Tahira

which is hardly a service and surely a mischief,

unintended by the Court may be, but embarrassing to the

subordinate judiciary. 8. There is no warrant whatever for

the High Court to reduce to a husk a decision of this

Court by its doctrinal gloss. The learned judges observe,

to our bafflementThe decision in Bai Tahira v. Ali

Hussain Fassalli, (supra) is to be confined only to the

facts of that case. It falls to be distinguished for the

following reasons : (i) the compromise of 1962 referred to

therein was construed as not affecting the rights of a

Muslim divorced wife in seeking to recover maintenance

Under Section 125 Cr. P.C., (ii) what was considered to

have been paid to the Muslim divorced wife was only the

Mahar amount and not the maintenance amount payable

for the Iddat period, (iii) The Mahar amount paid revealed

a rate of interest which for a person residing in Bombay

was held to be wholly inadequate to do duty for

maintenance allowance, (iv) there was nothing in that

case to show that the amount of Rs. 130/- paid towards

Iddat represented the payment of a sufficient

maintenance amount for the three months period of Iddat

and (v) the husband in that case did not raise any plea

based on Section 127(3)(b) Cr. P.C. 9. Let us quote a

few passages from this Court's ruling in Bai Tahira

(supra) to express the untenability of the excuse not to

follow the binding ratio:

Nor can Section 127 rescue the respondent, from his

obligation, payment of mehar money, as a customary

discharge, is within the cognizance of that provision. But

what was the amount of mehar ? Rs. 5000/-, interest

from which could not keep the woman's body and soul

together for a day, even in that city where 40% of the

population are reported to live on pavements, unless she

was ready to sell her body and give up her soul The point

must be clearly understood that the scheme of the

complex of provisions in Chapter IX has a social purpose.

III-used wives and desperate divorcees shall not be

driven to material and moral dereliction to seek sanctuary

in the streets. This traumatic horror animates the

amplitude of Section, 127. Where the husband, by

customary payment at the time of divorce, has adequately

provided for the divorce, a subsequent series of recurrent

doles is contraindicated and the husband liberated. This is

the teleological interpretation, the sociological decoding of

the text of Section 127. The keynote though is adequacy

of payment: which will take reasonable care of her

maintenance.

The payment of illusory amounts by way of customary or

personal law requirement will be considered in the

reduction of maintenance rate but cannot annihilate the

rate unless it is a reasonable substitute. The legal sanctity

of the payment is certified by the fulfilment of the social

obligation, not by a ritual exercise rooted in custom. No

construction which leads to frustration of the statutory

project can secure validation if the court is to pay true

homage to the Constitution. The only just construction of

the section is that Parliament intended divorcees should

not derive a double benefit. If the payment by any mehar

or ordained by custom has a reasonable relation to the

object and is a capitalised substitute for the order Under

Section 125 not mathematically but fairly-then Section

127(3)(b) subserves the goal and relieves the obliger, not

pro tanto but wholly. The purpose of the payment 'under

any customary or personal law' must be to obviate",i

,,,

,,,

,,"destitution of the divorcee and to provide her with

wherewithal to maintain herself. The whole scheme of

Section 127(3)(b) is manifestly to recognise the substitute

maintenance arrangement by lump sum so paid and is

potential as provision for maintenance to interpret

otherwise is to stultify the project. Law is dynamic and its

meaning cannot be pedantic but purposeful. The

proposition, therefore, is that no husband can claim Under

Section 127(3) (b) absolution from his obligation Under

Section 125 towards a divorced wife except on proof of

payment of a sum stipulated by customary or personal

law whose quantum is more or less sufficient to do duty

for maintenance allowance. 9. Granville Williams in his

Learning the Law"" (pp. 77-78) gives one of the reasons

persuading judges to distinguish precedents is ""that the

earlier decision is altogether unpalatable to the court in the

later case, so that the latter court wishes) to interpret it as

narrowly as possible"". The same learned author notes that

some judges may ""in extreme and unusual circumstances,

be apt to seize on almost any factual difference between

this previous case and the case before him in order to

arrive at a different decision. Some precedents are

continually left on the shelf in this way, as a wag

observed, they become very ""distinguished"". The limit of

the process is reached when a judge says that the

precedent is an authority only ""on its actual facts"". We

need hardly say that these devices are not permissible for

the High Courts when decisions of the Supreme Court are

cited before them not merely because of the

jurisprudence of precedents, but because of the

imperatives of Article 141.†(i) wherein a trite principle

of law stands expounded, vis-a-vis, verdicts rendered, by

the Hon'ble Apex Court, being unamenable, for, being

departed from, by the High Courts, hence, in tandem

therewith, the, acquiesced departure(s), from, the verdict,

of, the Hon'ble Apex Court rendered in All India Judges

Association & Ors vs. Union of India, reported in (2002)4

SCC 247, and, also from, the, in consonance therewith

Rule 13, borne in the H.P. Judicial Rules, can neither be

brooked nor can be countenanced, irrespective, of any

purported delay, and, laches, arising from any belated

challenges, being made by the writ petitioners, vis-a-vis,

the gradation list(s) concerned, wherein, their names

occur, below, the names, of, the private respondents.","'

,

,"45. In the matter of seniority, as per the settled legal principles, the

seniority already settled cannot be unsettled even if a particular category

has exceeded its quota. It has been held by the Apex Court in

Hon’ble Punjab & Haryana High Court at Chandigarh vs. State o

Punjab & ors., AIR 2018 SC 5284 that in case any category has

exceeded its quota in the cadre and the appointment made as per the

Rules, the promotees who have exceeded the quota neither have to be

pushed down in the seniority nor their seniority has to be downgraded.

However, the conduct of the petitioners and the other similarly situated

officers in the cadre of District/Addl. District & Sessions Judges in not

approaching the Court in accordance with law and pursuing their

grievances in a manner to bring the same to logical end and rather

withdrawn the claims they brought to this Court and also the Apex

Court time and again without taking the same to its logical end lead to

the only conclusion that they had acquiesced their claims and also these

writ petitions having been filed in the year 2018 are definitely barred by

delay and laches.

In support of such findings, support can also be drawn from the

judgment of the Apex Court in Union of India & ors. vs. Tarsem Singh

(2008) 8 SCC 648. The relevant text of the judgment reads as follow.

7. To summarise, normally, a belated service related claim will be

rejected on the ground of delay and laches (where remedy is sought by

filing a writ petition) or limitation (where remedy is sought by an

application to the Administrative Tribunal). One of the exceptions to the

said rule is cases relating to a continuing wrong. Where a service

related claim is based on a continuing wrong, relief can be granted even

if there is a long delay in seeking remedy, with reference to the date on

which the continuing wrong commenced, if such continuing wrong

creates a continuing source of injury. But there is an exception to the

exception. If the grievance is in respect of any order or administrative","11. The acceptance, by, one of us (Hon'ble Mr. Justice

Dharam Chand Chaudhary, J.), of, the submission

addressed, by Mr. R.L. Sood, learned Senior Counsel,f or,

fthe private respondent, that, for want of further

successful challenges, being made by the petitioners, vis-

avis, the judgment recorded, upon, CWP No. 61 of 1999,

(a) and, also the further acceptance, by one of us (

Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), of, a

further submission addressed, by the afore counsel, (b)

that, with the rejected representations made, in

consequence thereto, also remaining unsuccessfully

unchallenged, or remaining unchallenged, hence, by the

petitioners, thereupon, they render themselves rather

guilty of vices, of, delay and laches, and, also hence the

concomitant stain, of, acquiescence(s), permeating the

writ petition(s), (c) necessarily also cannot become

countenanced, by, the undersigned, as, the afore verdict

was made prior, to, the verdict recorded by the Hon'ble

Apex Court, in, a case titled, as, All India Judges'

,Association & Ors vs. Union of India, reported in (2002)4

SCC 247, (i) and also was rendered prior to the

consequent therewith hence drawn rather the apposite

hereat validly hence operating Rule 13, rule whereof does

extantly govern(s), and, regulate(s), the, determination(s),

of, inter se seniority, of, various contemplated inductees,

into, the, rank of Addl. District Judge(s)/District Judge(s)

and, who become drawn, from, various streams or

channels. Moreover, also when, any deviation from the

afore, are, condoned upto 31.03.2003. (ii) Emphasisingly

also, whereas, the afore verdict, and, consequent

therewith drawn Rule 13, does reiteratedly constitute, the,

solitary parameter, and, also the governing regimen, for,",

,,,

,,,

,"decision which related to or affected several others also, and if the

reopening of the issue would affect the settled rights of third parties,

then the claim will not be entertained. For example, if the issue relates to

payment or re-fixation of pay or pension, relief may be granted in spite

of delay as it does not affect the rights of third parties. But if the claim

involved issues relating to seniority or promotion etc., affecting others,

delay would render the claim stale and doctrine of laches/limitation will

be applied. In so far as the consequential relief of recovery of arrears

for a past period, the principles relating to recurring/successive wrongs

will apply. As a consequence, High Courts will restrict the consequential

relief relating to arrears normally to a period of three years prior to the

date of filing of the writ petition.â€​

46. The ratio of the judgment of the Apex Court in State of Himacha

Pradesh & ors. vs. Rajesh Chander Sood (2016) 10 SCC 77, is that i

service matters, delay and laches or limitation may not thwart the claim

so long as it may be, however, if such claim if allowed does not have

any adverse repercussions on the settled third party rights. The present

is a case where the seniority list of 2005 and also 2018 (Annexures P-2

& P-16, respectively) have been sought to be quashed. In case such

relief is granted at such a belated stage, it will certainly amount to

unsettle the seniority of the officers in the cadre settled long back which

is not legally permissible. The arguments that S.C.Kainthla, petitioner i

CWP No. 2061 of 2018 was inducted to the cadre in the year 2006

whereas Rajeev Bhardwaj in CWP No. 2292 of 2018 in the year 2009

and as such the cause of action accrued to them from the said date(s) is

again without any help to the writ petitioners as they wake up from deep

slumber for the first time only in the year 2014 when I.A. No. 334 o

2014 was filed in the Apex Court and thereafter when these writ

petitions in the year 2018 in this Court.

47. In a case where the impugned seniority list was published at least 12

times was sought to be quashed, the apex Court in V.Bhasker Rao &

others vs. State of A.P. & ors. (1993) 3 SCC 307 has held as under:

“10. Mr. Madava Reddy then contended that the petitioners were

appointed in the years 1981 and since then till the year 1988 twelve

seniority lists have been published showing the petitioners below

respondents 4 to 16. At no point of time they challenged the seniority

lists in the Court. Even when the writ petitions filed by Chalapathi and

others were pending they did not intervene before the High Court. The

petitioners, according to Mr. Madava Reddy, are guilty of gross delay

and latches and as such are not entitled to get relief by way of this

petition under Article 32 of the Constitution of India.

11. We see considerable force in both the contentions raised by Mr.

Madava Reddy. We are, however, of the view that it would be in the

larger interest of the Service to dispose of this petition on merits.â€​

In such circumstances, the petitioners were held not entitled to invoke

Article 32 to claim seniority over the respondents.

51. The crux of the case law so cited, therefore, is that there should be

no delay to challenge the seniority. The seniority fixed long ago should

not be disturbed.","the contentious purpose. Moreover, any rejection(s), of,

the apposite representations, as, made by the petitioner,

hence, by the High Court, on its administrative side, also

subsequent to the decision, rendered in All India Judges'

Association & Ors vs. Union of India, reported in (2002)4

SCC 247, is also both an unworthy, and, also an

inefficacious ground, for, effacing the binding, and,

conclusive diktat, of, law, as, recorded by the Hion'ble

Apex Court, in, the afore case, and, nor also can either

blunt or reduce the vigour, of, the apposite Rule 13, as,

has been incorporated, in, the H.P. Judicial Services

Rules, hence, in pursuance to the decision, of, the Hon'ble

Apex Court, as, rendered, in, the afore case.

l

n12. One of us (Hon'ble Mr. Justice D.C. Chaudhary, J.

has strenuously emphasised, upon, the factum qua with

both the writ petitioners or one of them, in,

contemporaneity, vis-a-vis, their induction into service,

and, of, the private respondents, rather being not borne, in,

the cadre of District Judge/Additional District Judge

hence, theirs being barred, to, at this stage, hence, stake

any claim, for, theirs securing, a, rank in the seniority list,

nrather above the private respondents, (a) especially in

contemporaneity, vis-a-vis, the, induction(s) into service,

of, the private respondents. However, the afore

submission is also unworthy, for acceptance, (b) as, the

apt suitable aspirants, vis-a-vis, the contentious post of

fjudicial officers, are those, who were to be legitimately

drawn, from, the stream or feeder channel of Civil Judges

(Senior Division), for, hence, their claim, for promotion

thereto, being considered, at, the requisite phase, by the

High Court, (c) whereas, when their valid induction

thereinto, rather become acquiesced, to, be untenably

substituted, by the private respondents, hence, in

acquiesced detraction, and, also in transgression, of, the

mandate, of, the Hon'ble Apex Court, as, rendered in a

case titled as All India Judges' Association & Ors vs.

Union of India, reported in (2002)4 SCC2 47, and, besides

also, obviously, upon, the afore alluded hence acquiesced

breach of Rule 13, as, became promulgated, in

consonance therewith, (d) whereas, they were

necessarily available, for induction/promotion, to the post

of District Judge/Additional District Judge, (e) and, who

as explicitly echoed, in, the report of the Hon'ble Judges

Committee, rather were untenably declined, their right for

being considered for promotion, vis-a-vis, the, apposite

promotional post(s). Since the afore declinings, are not

grooved, in any further reason, qua theirs being either

unsuitable, for, promotion, to, the rank of District

Judge/Additional District Judge, given theirs therea

facing proceedings, of, mis-conduct (f) or theirs being

otherwise unsuitable or theirs not passing any prescribed

suitability test, for, the relevant purpose nor when the

High Court, in its reply, hence, projects any further

reason, qua, hence, any dire exigencies, of, service or for

any other scribed well reasoned circumstances, their non

induction, to, the promotional post, of, District

Judge/Additional District Judge, rather becomin

necessitated, (g) thereupon, the non consideration, of the

afore contemplated stream, of, valid inductees, as,

Additional District Judge/District Judge, or their no

consideration, for, promotion thereinto, is, wholly

impermissible, and, also is arbitrary, (h) rather the

seniority list, as, drawn by the Hon'ble Judges Committee,

hence, in consonance with the expostulation of law,

declared in All India Judges' Association & Ors vs. Unio

of India, reported in (2002)4 SCC 247, and also in

consonance with Rule 13, as, became drawn in

concurrence therewith, is enjoined to be revered. (I)

Preeminently also for, the preeminent factum, qua, hence

only thereupon, the dilution, of, the, apposite Rule hence

extantly governing, the, contentious inter se seniority, of,

the writ petitioners, and, of the private respondents, and,

encapsulating, the, trite canon, vis-a-vis, throughouts

rather rigorous adoption(s), by the High Court(s), rather

for, the afore requisite purpose, hence the, norm of

“Post Based Rosterâ€, than, the acquiesced invalidly",")

,

,

t

g

n

n

,,,

,,,

,,"adopted norm, inasmuch, as, “ Vacancy Based

Roster†by the High Courts, hence, would become aptly

precluded.

13. On anvil of the H.P. Judicial Officers' Association

rather unconditionally, withdrawing on 4.11.2016, CWP

No.696 of 2010, as also, with Writ Petition(C) No.532 of

2009 becoming withdrawn, on 18.03.2010, despite, an

order being recorded, on, 14.7.2016, by the Hon'ble Apex

Court, as, embodied in Annexure R-3/F, that, the parties

be relegated, to, work out their remedy, in, the said writ

petition, and, also, to, await the outcome, of, the said writ

petition, (i) thereupon, also, on anvil of the writ petitioners

herein, not joining, in the array of petitioner, hence all the

aggrieved officers concerned, who had become earlier

arrayed, through, the H.P. Judicial Officers' Association,

in, the afore CWPs, rather instituted by the latter, and,

CWPS whereof, stood unconditionally withdrawn, hence

Hon'ble Mr. Justice Dharam Chand Chaudhary, J., ha

concluded, (a) that, with purportedly similarly situate, and,

identically aggrieved, visa-vis, the, petitioners herein

hence, accepting the drawing, of, the gradation list(s)

concerned, (b) thereupon, it begetting the apt corollary,

visa-vis, the afore visible acquiescence, as, arose, from,

the petitioners omitting to, hence join them, along with

them, in, the extant petition(s), (c) also making

operational, the, estopping principles, of, waivers, and,

abandonments, against, the writ petitioners, and, the

latters being concomitantly baulked, to, reagitate a

controversy, rather acquiesced, by the H.P. Judicial

Officers' Association, as evident, from, the H.P. Judicial

Officers' Association, unconditionally withdrawing CWP

No. 696 of 2010, to be finally, and, conclusively, hence

earlier rested. However, the, effects, of, the afore

estopping inference(s), of, acquiescence or waivers, and,

abandonments, as, hence become drawn, by one of us

(Hon'ble Mr. Justice Dharam Chand Chaudhary, J.), doe

also rather hence become emaciated, vis-a-vis, its vigour,

(d) inasmuch as, the verdict of the Hon'ble Apex Court

as, rendered in a case titled, as, All India Judges'

Association & Ors vs. Union of India, reported in (2002)4

SCC 247, is, a judgment in rem, hence within, the, domain,

of, the trite postulations, as, are borne, in, relevant

paragraphs No. 21 to 23, of, a decision of the Hon'ble

Apex Court rendered, in, a case titled, as, State of Uttar

Pradesh and others vs. Arvind Kumar Sribastava and

others, reported in (2015)1 SSC, the, afore relevan

paragraphs whereof, read as under:- “21. Holding that

the respondents had also acquiesced in accepting the

retirements, the appeal of U.P. Jal Nigam was allowed

with the following reasons( Jaswant Singh Case,(2006) 11

SCC 464): “13. In view of the statement of law as

summarised above, the respondents are guilty since the

respondents have acquiesced in accepting the retirement

and did not challenge the same in time. If they would

have been vigilant enough, they could have filed writ

petitions as others did in the matter. Therefore, whenever

it appears that the claimants lost time or whiled it away

and did not rise to the occasion in time for filing the writ

petitions, then in such cases, the court should be very

slow in granting the relief to the incumbent. Secondly, it

has also to be taken into consideration the question of

acquiescence or waiver on the part of the incumbent

whether other parties are going to be prejudiced if the

relief is granted. In the present case, if the respondents

would have challenged their retirement being violative of

the provisions of the Act, perhaps the Nigam could have

taken appropriate steps to raise funds so as to meet the

liability but by not asserting their rights the respondents

have allowed time to pass and after a lapse of couple of

years, they have filed writ petitions claiming the benefit

for two years. That will definitely require the Nigam to

raise funds which is going to have serious financial

repercussions on the financial management of the Nigam.

Why should the court come to the rescue of such persons

when they themselves are guilty of waiver and

acquiescence?†22. The legal principles which emerge",",

,

s

s

,

t

,,,

,,,

,,"from the reading of the aforesaid judgments, cited both by

the appellants as well as the respondents, can be summed

up as under: 22.1 Normal rule is that when a particular set

of employees is given relief by the Court, all other

identically situated persons need to be treated alike by

extending that benefit. Not doing so would amount to

discrimination and would be violative of Article 14 of the

Constitution of India. This principle needs to be applied in

service matters more emphatically as the service

jurisprudence evolved by this Court from time to time

postulates that all similarly situated persons should be

treated similarly. Therefore, the normal rule would be that

merely because other similarly situated persons did not

approach the Court earlier, they are not to be treated

differently. 22.2. However, this principle is subject to well

recognized exceptions in the form of laches and delays as

well as acquiescence. Those persons who did not

challenge the wrongful action in their cases and

acquiesced into the same and woke up after long delay

only because of the reason that their counterparts who

had approached the Court earlier in time succeeded in

their efforts, then such employees cannot claim that the

benefit of the judgment rendered in the case of similarly

situated persons be extended to them. They would be

treated as fence-sitters and laches and delays, and/or the

acquiescence, would be a valid ground to dismiss their

claim. 22.3 However, this exception may not apply in

those cases where the judgment pronounced by the Court

was judgment in rem with intention to give benefit to all

similarly situated persons, whether they approached the

Court or not. With such a pronouncement the obligation is

cast upon the authorities to itself extend the benefit

thereof to all similarly situated person. Such a situation

can occur when the subject matter of the decision

touches upon the policy matters, like scheme of

regularisation and the like (see K.C. Sharma & Ors. v

Union of India (supra). On the other hand, if the judgment

of the Court was in personam holding that benefit of the

said judgment shall accrue to the parties before the Court

and such an intention is stated expressly in the judgment

or it can be impliedly found out from the tenor and

language of the judgment, those who want to get the

benefit of the said judgment extended to them shall have

to satisfy that their petition does not suffer from either

laches and delays or acquiescence. 23. Viewed from this

angle, in the present case, we find that the selection

process took place in the year 1986. Appointment orders

were issued in the year 1987, but were also cancelled

vide orders dated June 22, 1987. The respondents before

us did not challenge these cancelleation orders till the year

1996, i.e. for a period of 9 years. It means that they had

accepted the cancellation of their appointments. They

woke up in the year 1996 only after finding that some

other persons whose appointment orders were also

cancelled got the relief. By that time, nine years had

passed. The earlier judgment had granted the relief to the

parties before the Court. It would also be pertinent to

highlight that these respondents have not joined the

service nor working like the employees who succeeded in

earlier case before the Tribunal. As of today, 27 years

have passed after the issuance of cancellation orders.

Therefore, not only there was unexplained delay and

laches in filing the claim petition after period of 9 years, it

would be totally unjust to direct the appointment to give

them the appointment as of today, i.e. after a period of 27

years when most of these respondents would be almost

50 years of age or above.†wherein, a, candid

expostulation of law occurs, vis-a-vis, (i) that upon, a,

particular set of employees, being, accorded relief, by the

court concerned, thereupon, all other identically, and,

similarly situated therewith persons, also becoming

enjoined to be treated alike therewith, rather through,

theirs being extended similar benefits; (ii) as otherwise it

would tantamount, to, discrimination, and, would be

violative of Article 14, of, the Constitution of India.

Though, delay and laches or acquiescences hence bar the",.

,,,

,,,

,,"slumbering litigants, to, raise claim(s), earlier reared and

granted, vis-a-vis, the peers concerned, who rather

successfully agitated them through courts, yet an

exception thereto, is, also carved therein inasmuch, as

qua, upon, any judgment pronounced by courts of law,

being, a, judgment in rem, hence, with an intention, to, give

benefit to all, (iii) thereupon, the estopping inference(s),

of, delay and laches or of acquiescence, rather not

working against other purportedly identical, and, similarly

situated persons, hence, along with their apposite peers,

and, who subsequently claim an alike relief, vis-a-vis, the

ones granted earlier qua their peers, preeminently rather

the afore estopping vices becoming denuded, vis-a-vis,

their vigour, and, force. Necessarily hence the fulcrum,

of, the reasoning, assigned by one of us (Hon'ble Mr.

Justice Dharam Chand Chaudhary, J.) while concurring

with an alike therewith inference, as, became earlier

drawn, by the learned Single Judge of this Court, qua

with the, purported immense procrastinated delay hereat,

and, also with an immense hiatus elapsing, in, theirs

challenging, the, purportedly settled gradation lists, as,

became much earlier thereto hence drawn, hence,

naturally attracting against the petitioners, the, estopping

vices, of, delay, laches, and, acquiesces (a) and,

therealongwith reiteratedly also the afore immediately

prior hereto alluded, conclusion, as, drawn, by one of us

(Hon'ble Mr. Justice Dharam Chand Chaurdhary, J.)

rather becomes completely unhinged, (b) conspicuously,

given, the verdict rendered by the Hon'ble Apex Court, in

a case titled as All India Judges' Association & Ors vs.

Union of India, reported in (2002)4 SCC 247, hence, fo

the reasons aforestated, holding a perennial immense

inviolable legal command, and, clout, (c) and, also the

rules drawn in consonance therewith also enjoying, an,

alike perennial command, and, fiat, (d) and, when an

acquiesced breach thereof, by, H.P. High Court, is,

evident, upon, the afore allusion, as, made to the afore

report of the Hon'ble Judges Committee, as, drawn, in, the

year 2010, (e) wherein, the rigor, of, the afore imperative

judicial diktat, and, also of the apposite therewith rules,

hence, being infringed, is, openly echoed, (f) thereupon,

necessarily hence apart, from, the judgment (supra)

rendered by the Hon'ble Apex Court, becoming a

judgment in rem, rather also makes it amenable, to be

cast, in a legal mold, rendering, it hence, to, become

amenable, to, a, construction qua it throughout(s)

imposing, an, exacting legal

obligation, upon, the High Court, to, ensure the meteings

of, the completest deference thereto. Obviously, the afore

valid perennial diktat, has been acquiesced, to, become

breached. Moreover when the direction(s) rendered, by,

the Hon'ble Apex Court, in, I.A. No.17 of 2011 in IA

No.244 of 2009 and IA Nos. 1 & 2 in IA Nos. 17/2011 in

IA No. 244/2009, and IANo.334/2014, IA Nos. 335, 33

337, 338/2015 and IA No. 339 & 341/2016 in Writ

Petition (Civil) No. 1022/1989, on 28.4.2016, as,

aforestated, has also become revered, by the Hon'ble

Two Judges' Committee, of, this Court, besides when the

report, of, the Committee, is, drawn in consonance, with,

the apt relevant Rule 13, thereupon, no irreverence

thereto, can be brooked. Reiteratedly, thereat alone i.e. in

the year 2016, hence, the contentious dispute, has been

given, a, complete quietus, and, not earlier, hence

thereupon, also all the afore verdicts, are inapplicable

hereat. Even though, one of us (Hon'ble Mr. Justice

Dharam Chand Chaudhary) has alluded, to, the recorded

minutes, as, made by the Full Court, in its meeting held in

the year 2017, wherethrough, the report Annexure P-12,

became disapprobated, on anvil, of, a Judgement, of, the

Hon'ble Apex Court, rendered, in, a case titled as Direc

Recruit Class II Engineering Officers' Association vs

State of Maharashtra and others, reported in (1990)2

SCC 715. However, the afore drawn minutes, by the Full

Court, wherethrough, it declined to accept Annexure P12

also cannot weigh, with this Court, as, they are anchored,

upon, a verdict, of, the Hon'ble Apex Court rendered, in",",

,

,

,

r

,

6,

t

.

,

,

,,,

,,,

,,"Direct Recruit Class II EngineeringO fficers'

Association's case (supra), verdict whereof, for the

reasons assigned hereinabove, is, grossly in applicable,

vis-a-vis, the factual matrix prevailing hereat","d

d

t

s

,

.

,

,

,

3

t

t

,,"15. One of us (Hon'ble Mr. Justice Dharam Chan

Chaudhary, J.) has also expressed, a, view, that, since

subsequent to 2010, the, stream or feeder category of

Civil Judges (Senior Division), became compensate

rather for earlier purported errors or departures, from, the

verdict, of, the Hon'ble Apex Court rendered in a case

titled as All India Judges' Association & Ors vs. Union of

India, reported in (2002)4 SCC 247, and, also from the

consonant therewith incorporated Rule 13, (i) inasmuch,

as their services became regularised, from their hitherto

adhoc basis service(s), as, Presiding Officer, Fast Track

Court, hence, into/as, Addl. District Judges/Distric

Judges, (ii) whereupon, with the afore candid wrong(s) or

error(s), if any, arising from depatures, if any, from, the

verdict of the Hon'ble Apex Court in case supra,

becoming undone, (iii) thereupon, the writ petitioners

rather not holding any valid surviving, and, subsisting

grievance, and, the verdict recorded, by, the learned

Single Judge, being, well merited, and, warranting

vindication. However, for fathoming, the, vigour, of, the

afore view expressed, by, one, of, us (Hon'ble Mr. Justice

Dharam Chand Chaudhary), the undersigned, had, elicited

the records appertaining, to the induction into service, of,

Judicial Officers or those who become drawn from the

stream, of, Civil Judges (Senior Division), (iv) and, ha

noticed, that, two Fast Track Courts, hence, on an adhoc

basis, had come to be created in the year 2003, (v) and,

also, a, notification in the afore regard was issued, on,

16.08.2003/6.8.2003, (vi) and, thereafter, through, the

recorded minutes of the Full Court, held, on, 29.8.2003

certain judicial officers, holding the rank of the Civil Judge

(Senior Division), were, appointed, as, Presiding

Officer(s) (Fast Track Court), hence, on, an adhoc basis

However subsequently, through, a notification issued, by

the Government of Himachal Pradesh, on 30th March

2013, wherethrough, the hitherto adhoc Fast Track

Courts, became converted into permanent courts, of,

Additional District and Sessions Judges, (vii) hence, in

pursuance thereto, through, the, recorded minutes of the

Hon'ble Judges Committee, the, hitherto adhoc services

of, the judicial officers, as, became drawn, from, the

stream or channel, of, Civil Judges (Senior Divisions)

hence were declared to be regularised, as, District

Judges/Additional District Judges. However, since 200

upto 2013, all the afore judicial officers, as, become

drawn, from, the stream/channel of Civil Judges (Senior

Division), rather become continued to be reflected, as

holding, the, posts concerned, merely on an adhoc basis,

(viii) and, conspicuously since 2003, and, upto 2013, all,

the afore adhoc posts of Presiding Officers, of, Fas

Track Courts, were not en-cadred post(s), rather

throughout, the afore period, hence, were ex-cadred

post(s). Hence, the, sequel thereof, is, that, a, 34 point

roster, was applicable, hence, with all its absolutest clout,

and, command, (ix) only vis-a-vis, the en-cadred posts of

Additional District Judge(s)/District Judge(s), and, no

visa-vis, the apposite ex-cadred posts, (x) besides, the,

further corollary thereof, is, qua when in commensuration,

with, the, canonised 34 point roster, hence, operative upto

2013, whereat the hitherto afore ex-cadred posts, were

en-cadred , rather thereupto, only the, co-equal thereto

hence en-cadred posts, became available, for, operating

thereons rather the commensurate thereto, number(s), of,

roster points, for, therethroughs, hence, determining, the

validities, of, all the apposite contentious inductions,

conspicuously at the apposite disputed phase(s), and, also

for, concomitantly reckoning, the, contentious inter se

seniority. In other words, the, operation, of, the 34 point

roster, does solitarily, vis-a-vis, the compatible therewith

encadred posts, rather becomes, the, governing or the

apposite regulating parameter. Consequently, only after

the encadrement hence after 2013, the hitherto adhoc",

,,,

,,,

,,"posts, of, Presiding Officer, Fast Track Courts, into,

permanent posts, of Additional District and Sessions

Judges, the working, of, a 34 point roster, would halt, and,

not earlier, (xi) conspicuously nor when the apposite

regularizations were not given any retrospective effects,

nor also when any concomitant restrospectively operating

additions, vis-a-vis, the roster point(s), were hence made

through validly made rule(s). Necessarily, upon, increase,

in, the strength, of, the apposite cadre hence after 2013,

also, the requisite rules, hence, require/required, an,

amendment, if, not already made. 16. Moreover, “the

effect of the acquiescenceâ€, as, made by the Hon'ble

Judges Committee, in the report drawn, in the year 2010,

also has the necessary sequeling effect, especially, and,

inasmuch, as, despite, the officers, hence manning the

temporary Fast Track Courts, merely, on an adhoc basis,

rather since 2004, and, upto 2010, and also despite, the

afore ex-cadre posts, being donned, by the officers

drawn, from, the, stream, of, Civil Judges (Senio

Division), yet the Hon'ble Judges Committee, rathe

propounding, a, candid view that there still exist breaches

or departures, from, the verdict of the Hon'ble Apex

Court rendered, in, a case titled, as, All India Judges

Association & Ors vs. Union of India, reported in (2002)4

SCC 247, (a) “is, qua hence,†the High Court

acquiescing, to, the operation, of, a 34 point roster, vis-a-

vis, the apposite encadred posts, and, not qua ex-cadre

posts. Reiteratedly, the afore acquiescence also obviously

estops, the, High Court, to, contend qua the afore adhoc

posts, existing prior to 2013, becoming unamenable or

baulking the play(s), of, a 34 point roster vis-a-vis, the

thereupto i.e. from 31.3.2003 upto 2013, hence, the co-

equal thereto rather en-cadred posts. Emphasisingly,

hence, also the afore expressed view, by one, of, us(

Hon'ble Mr. Justice Dharam Chand Chaudhary, J.

becomes benumbed, and, also become blunted, vis-a-vis,

its vigour, if any, and, nor it can be befittingly concluded,

that, the afore purported compensatory measures, hence,

mitigate the grievance(s), of, the writ petitioners. 17.

Nowat, the preeminent reason which prevail(s), upon, the

undersigned to validate, the, report, of, Hon'ble Judges

Committee, report borne in Annexure P-12, is, grooved in

(a) the verdict of the Hon'ble Apex Court rendered in a

case titled, as, All India Judges' Association & Ors vs.

Union of India, reported in (2002)4 SCC2 47, holding

perennial force, and, applicability, and, also, its purveying

a continuous, and, also, a, repeated cause, of, action to the

aggrieved concerned. (b) the perenniality, of, the verdict,

of, the Hon'ble Apex Court, as, rendered in the afore

case, necessarily can not be deemed, to, ever slumber or

become redundant, and, nor also any purported,

slumbering(s), and, acquiescences, or delays and laches, if

any, on the part, of, the writ petitioners, also cannot

concomitantly, render halted, the, ever awakened or never

slumbering, rather, the absolutest command, and, diktat of

the expostulation, of, law, as, pronounced, in, the verdict

rendered by the Hon'ble Apex Court, in, a case titled as

All India Judges' Association & Ors vs. Union ofI ndia,

reported in (2002)4 SCC 247. Moreso, when it ha

become acquiesced, by, the afore alluded report, of,

Hon'ble Judges' Committee, to be untenably departed

from.","r

r

'

,

)

s

,"52. No doubt in the case in hand, the subordinate Judicial Officers

including the member of the then H.P. Higher Judicial Service raked up

the issue of excess quota of direct category candidates in the Higher

Judicial Service and inter se seniority, however, either unsuccessfully or

without taking such dispute to its logical end. In a case titled

Rabindranath Bose & ors. vs. The Union of India & ors., (1970) 1 SCC

84, where the dispute of seniority was brought to Court after about 15

years, it has been held by the Apex Court that petitioners are not entitled

to the relief sought without there being any reasonable explanation as to

why they approached the Court after such an inordinate delay",",",

,60. On behalf of respondent No. 2 and on behalf of the petitioners also,",",

,,,

,,,

,"reliance has been placed on the judgment of the Apex court in Punjab &

Haryana High Court vs. State of Punjab, 2018 SCC Online SC 1728.

this case, the direct recruits and superior Judicial Officers of Punjab

Judicial Service had assailed the seniority list dated 24.12.2015 by filing

different set of writ petitions in the High Court of Punjab and Haryana

in the year 2016. The writ petitions were filed and the impugned

seniority list dated 24.12.2015 was set aside with the observation that

promotion of officers under Rule 7(3) (a) (regular promotion) under

2007 Punjab Rules made beyond the quota was held as adhoc and the

promotees also not held entitled to get benefit of that service for the

purpose of seniority and rather they were ordered to be placed at the

bottom of the seniority after direct recruitment. Similarly, the direct

recruits were also not held entitled for being considered as members of

the cadre from the date of their recommendation by the High Court to

the State for appointment and as a result thereof their seniority was

ordered to be recast.

61. Aggrieved by the judgment passed by the Division Bench of Punja

and Haryana High Court, Civil Appeal Nos. 5518-23 of 2017 came to be

filed in the Apex Court. The Apex Court has held as under:

70. In view of the foregoing discussion, we come to the following

conclusions:

1) Promotion of fifteen officers under Rule 7(3)(a) cannot be held

beyond their quota.

2) The promotion of fifteen officers cannot be s aid to be adhoc nor they

can be directed to be put at the bot tom of the seniority list.

3) The High Court even though accepted the pri nciple that roster is

applicable in the seniority but in the operative portion of the judgment in

paragraph 208 did not issue any direction to recast the seniorit y as per

the roster given in the Appendix-- B which is an apparent error

committed by the High Court.

4) Rule 2007 having been brought in place to gi ve effect to the

judgment of this Court in All India Judges association case, (2002) 4

SCC 247, while interpreting the Rules 2007 the direction issued by this

court have to be kept in mind and rules cannot be interpreted in a

manner so as to violate the directions issued by thisCourt in the above

judgment.

5) Rule 7(4) read with Appendix-B has to be re ad in the light of

direction of this Court in All India’s cas e and harmonious

construction of the rule clearly indicates that roster which has been

expressly made appli cable for filling the post of all the three streams

shall be applicable while determining the seniority.â€​

And granted the following reliefs:

71. In view of foregoing discussion, the seniority lis t dated 24.12.2015 is

to be set aside. After setting aside the seniority list, two courses are

open. Firstly, to re mit this matter to the High Court again to recast the

seniority list as per our direction and secondly, to finalize sen iority list in

this judgment itself. We choose to a dopt the second course for two

reasons:

a ) Already period of three years has elapsed when the tentative

seniority list was published. Finalization of seniority as early as possible

is essential and ne cessary for administration of justice.

b) There is no dispute regarding interse - seniority of the promotees

under Rule 7(3) (a) and issue pertaining to interseseniority of out of turn

promotees and direct recruits have already been finalized by us. Only

exercise which is to be undertaken is to place officers of three streams

in accordance with the roster as indicated in AppendixB. After placing

the officers of three streams, the seniority position as per roster comes

as foll ows:…………â€​

62. It is thus seen from the conclusion drawn by the Apex Court that 15

officers promoted under Rule 7(3)(a) were not held to be promoted

beyond their quota and rather as per rules and neither their promotion

was held to be adhoc nor they were required to be placed at the bottom

of the seniority list.

63. On the ratio of this judgment, Mr. K.D.Sood, learned Sr. Advocate","In

b",

,,,

,,,

,"has argued that the recruitment made prior to 31.3.2010 being under the

Rules need no interference nor the direct recruits to be pushed down

and assigned the seniority below the petitioners. However, to place

reliance on this judgment would amount to touch the merits which in the

case in hand cannot be done in view of the findings hereinabove that the

claim of the petitioners is stale and the writ petitions are barred by the

principle of delay and laches. Otherwise also, in the judgment (supra),

the seniority list of 4.12.2015 was challenged without any delay i.e. in

the year 2016 whereas in the case in hand all the seniority lists w.e.f.

2005 onwards till 2018 have been sought to be quashed. The relief so

sought in view of the findings hereinabove is, therefore, highly time

barred.",,",

,"64. Not only this, the private respondents in the case in hand have been

selected and appointed to the cadre consequent upon the posts

advertized by respondent No. 2 and the selection process in accordance

with the Rules followed. They have been selected on the basis of their

merit long back i.e. respondent No. 3 on 18.5.2004 and respondent No.

4 on 17.12.2006. The said respondents being not at any fault can neither

be pushed down nor the seniority can be assigned to them below the

petitioners, at this belated stage, that too when the petitioners opted for

not challenging their selection and appointment during all these years.

The judgment of the Apex court in Ajit singh & others (II) vs. State o

Punjab & ors. (1999) 7 SCC 209 & MaharashtraV ikrikar Karamchari

Sangathan vs. State of Maharashtra & another (2000) 2 SCC 552 cited

on behalf of petitioners are not applicable for the reason that ratio

thereof would have been of some help to the case of the petitioners on

merits. The claim of the petitioners, however, herein has been rejected

being barred by delay and laches and they having acquiesced their

claims as is apparent from the acts and deeds attributed to them and

their conduct. There cannot be any quarrel to the law laid down by the

Apex Court in Dwarikesh Sugar Industries Ltd. Vs. Prem Heav

Engineering Works (P) Ltd. And another, (1997) 6 SCC 450. In term

of the law laid down by the Apex court in Judges’ Association case,

“post based roster†in the matter of recruitment to the cadre of

District/Addl. District & Sessions Judges was required to bef ollowed

after the Rules framed in the year 2004. Respondent No. 2 has started

following “post based roster†on and w.e.f. 31.3.2010, as discussed

in detail hereinabove. Therefore, there may be delay which as per the

discussion hereinabove is on account of respondent No. 2 was

inadvertently following the “vacancy based rosterâ€. The writ

petitioners, however, failed to explain their conduct in not agitating the

matter if not from an early date at least immediately on their induction to

the service in the cadre of District/Addl. District & Sessions Judges

The interim application I.A. No. 334 of 2014 in which they were also

applicants was ultimately declined to be entertained by the Apex court

and accordingly disposed of. Therefore, any order passed during the

pendency of the application ceases to exist on its dismissal by the Apex

Court.","f

y

s

.",

,"66. In view of what has been said hereinabove, it is held that the

petitioners have laid stale claims in the writ petitions which certainly are

barred by delay and laches. Therefore, allowing the writ petitions would

certainly amount to unsettle the seniority position long back. The

seniority lists w.e.f. 2005 onwards cannot also be quashed at this stage.

Learned Single Judge, therefore, has not committed any illegality or

irregularity while arriving at a conclusion that the claims laid by the

petitioners in the writ petition being stale and also barred by delay and

laches and also time barred cannot be accepted nor the settled seniority

position can be unsettled at this belated stage",,

,"67. The present is rather a case where the petitioners on account of

their acts, deeds and conduct as well as acquiescences are not entitled

to the relief sought in the writ petition. Learned Single Judge has also

rightly held that the writ petitions are bad on account of clubbing of

multiple causes of action for the reason that when no relief has been

claimed against respondents No. 5 & 6 who were appointed to the

cadre on 27.9.2007 and 23.10.2009, respectively, their inclusion in the

writ petitions is obviously for an oblique purpose and extraneous

consideration to show that the writ petitions have been filed within a

reasonable time. It is, however, not so for the reasons in detail recorded

hereinabove","18. Much emphasis has been laid, upon, the factum, that,

with the purported breaking down, of, the relevant, norm,

of “Post Based Roster†by the High Court, for,

determining, the inter se seniority, of, the inductees, into

service, as, District Judge/Additional District Judge, and

who became drawn, from, the contemplated

streams/channels, and, in the per centum contemplated

therein, rather becoming condoned, (a) hence, in,

compliance, vis-a-vis, the verdict, of, the Hon'ble Apex

Court, as, become cited in the report made, by, the

Hon'ble Judges', in their meeting convened, in, the year

2016, minutes whereof also became placed, before the

Hon'ble Apex Court. The further argument, which, has

been strived to be erected thereon, is, hence the High

Court, rather concomitantly, accepting, the, validity of the",

,,,

,,,

,,"application hereat, of, the verdict supra, of, the Hon'ble

Apex Court, in its, meeting held, in, the year 2016.

Furthermore, it is also canvassed, that, in consonance

therewith, there cannot, yet, be any adoption, of, the

principle of “pushing downâ€. However, even the

afore submission, apart from, the hitherto assigned reason,

does, further falter and also stagger(s), (i) as, the apt

expostulated therewithin hence special circumstance(s),

for, hence, validating, the, departing(s) therefrom, remain

unpropounded, in the reply furnished, to, the writ petition,

by the High Court, (ii) besides, the, stark factum that in

case the High Court, had deemed it fit, to, mete, the

completest condoning compliance(s) thereto, or to derive,

the fullest vigour therefrom, (iii) thereupon, it became both

imperative and incumbent, upon, the High Court, to apart

from, purveying, the afore drawn apposite minutes, before

the Hon'ble Apex Court, to also ensure, that

submission(s) inconsonance therewith, besides also a

concurrent therewith order hence occurred, in, the

order(s) rendered, on, 28.4.2016, by the Apex Court,

upon, I.A. No.17 of 2011 in IA No.244 of 2009, and, IA

Nos. 1 & 2 in IA Nos. 17/2011 in IA NO. 244/2009, and

IA No.334/2014, IA Nos. 335, 336, 337, 338/2015, and,

IA No. 339 & 341/2016 instituted in Writ Petition (Civil

No. 1022/1989 or in the subsequent thereto proceedings

embarked, upon, by the Hon'ble Apex Court. However

neither the afore submission exists, in, the order rendered

by the Hon'ble Apex Court, nor any condonation or

validation, of, the afore submission(s), is, echoed therein,

nor in any other order(s) rendered, by, the Hon'ble Apex

Court, (a) rather with the Hon'ble Apex Court, making an

order, upon, the High Court, to, retrospectively adopt, the,

34 point roster, hence, with its absolutest vigour, rather

from 31.3.2003, does bringforth, a, conclusion, that, the

doctrine of “pushing downâ€, has become

countenanced, by the Hon'ble Apex Court, and, also

hence, a further inference, is, drawable qua breaches, if

any, vis-a-vis, the vindicable adoptable norms, of, a

“Post based Rosterâ€, are, uncondonable, as any

condonation thereof, would beget breaches, of, the

inflexible mandate, of, Hon'ble Apex Court, as, rendered

in a case titled as All India Judges' Association & Ors vs.

Union of India, reported in (2002)4 SCC 247, and,a lso,

vis-a-vis, the afore orders pronounced, in the afore I.As.

The afore conclusion gathers strength, from, the striking

factum qua rather the afore orders, as, made, upon, the

afore I.As, being not strived to be reviewed, upon, anvil,

of, the citations, relied, upon, by the Hon'ble Full Court, in

its minutes, hence, drawn, in the year 2016, (a)

whereupon, it becomes necessary to conclude, vis-a-vis,

the High Court abandoning, the afore ground, and, also its

accepting, the afore diktat, as carried, in the orders made

in the afore I.As , orders whereof became complied with

by the Hon'ble Judges Committee. Paramountly, also the

rule or norm, as, propounded, in the minutes, of, the

meeting of the Full Court, held in the year 2016, is

applicable only, vis-a-vis, statutory rules, however, it is not

applicable, vis-a-vis, the hereat finally, conclusively or

completely enforceable verdict, as, became rendered by

the Hon'ble Apex Court, in, All India Judges' Association

& Ors vs. Union of India, reported in (2002)4 SCC 247

nor is applicable, vis-a-vis, the order rendered, on,

28.4.2016, by, the, Apex Court, upon, I.A. No.17 of 2011

in, IA No.244 of 2009, and, IA Nos. 1 & 2, in, IA Nos.

17/2011, in, IA NO. 244/2009, and, IA No.334/2014, IA

Nos. 335, 336, 337, 338/2015 and IA No. 339 &

341/2016, instituted, in Writ Petition (Civil) No. 1022/1989,

as, thereupon the law declared, by, the Hon'ble Apex

Court, would become untenably breached. Contrarily, the

afore condonatory reliances anvilled, upon, the verdict

supra are deemed, to be waived or abandoned, with, a

concomitant estoppel qua therewith hence working

against the High Court. Paramountly, for, all afore

reasons, all the afore strived condonations, of, all the

afore acquiesced departures, is, also deemed, to, be not

accepted, by, the Hon'ble Apex Court",",

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67. The present is rather a case where the petitioners on account of

their acts, deeds and conduct as well as acquiescences are not entitled

to the relief sought in the writ petition. Learned Single Judge has also

rightly held that the writ petitions are bad on account of clubbing of

multiple causes of action for the reason that when no relief has been

claimed against respondents No. 5 & 6 who were appointed to the

cadre on 27.9.2007 and 23.10.2009, respectively, their inclusion in the

writ petitions is obviously for an oblique purpose and extraneous

consideration to show that the writ petitions have been filed within a

reasonable time. It is, however, not so for the reasons in detail recorded

hereinabove.",,,