JUDGMENT O.P. Garg, J.
1. For departmental promotion to the post of Bench Secretary, Grade II, an Office Memorandum dated 24.11.1998 was Issued by this Court inviting applications up to 10.1.1999 from the Assistants of this Court who have put in not less than ten years' continuous service on 1.12.1998 in class HI cadre. Selection was to be held on the basis of the competitive examination and interview. All the eligible candidates who had applied for the said post, were to appear in the examination on 9.1.1999.
2. The petitioners, Satrughan Tripathi and Kamlakar Dwivedi, who were Lower Division Assistants applied for the aforesaid post. Their applications were not entertained as admittedly they had not completed ten years' continuous service in class III cadre. Consequently, they filed the present writ petition with the prayer that they shall be treated to have been appointed in the year 1988 and if their length of service is reckoned from 1988, they would be eligible to appear in the examination for the post of Bench Secretary Grade II.
3. In pursuance of the interim order dated 8.1.1999, the petitioners were allowed to appear in the examination, which was scheduled to be held on 9.1.1999. The interim order was hedged with the condition that the result of the examination shall not be declared till further orders, The petitioners did appear in the examination and now an application has been moved with the prayer that the respondents be directed to declare the result. Since the petitioners would swim or sink with the ultimate decision on this writ petition, on merits, and counter as well as the rejoinder-affidavit have been exchanged, it was urged that the writ petition itself be disposed of finally.
4. Heard Sri D. S. Misra, learned counsel for the petitioners, Sri Sunil Ambwani, appearing on behalf of the respondent Nos. 1 to 3 and the learned standing counsel on behalf of the respondent No, 4.
5. To begin with, it may be mentioned that it is an Indubitable fact that on 1.12.1998, which was date specified in the Office Memorandum dated 24.11.1998, Annexure-1 to the writ petition, the petitioners had not completed ten years' continuous service in class III cadre and, therefore, they were not eligible to appear in the examination. The case of the petitioners, however, is that they appeared in the recruitment examination of the year 1988 respectively with Roll Nos. 22570 and 3973, and were finally selected as their names in the merit list, which contained 297 names, figured respectively at sl. Nos. 71 and 75. Out of the selected candidates, 83 persons were appointed initially and subsequently 17 more persons were appointed. In this manner. 100 selected candidates came to be appointed as Routine Grade Clerks (for short 'RGC') in the year 1983 itself. The claim of the petitioners, it is alleged, was illegally ignored on totally untenable grounds and on account of the arbitrariness on the part of the respondents, the petitioners, who were within the range of 100 selected candidates. were not extended the benefit of appointment in the year 1988 itself. The petitioners came to be appointed in the year 1989 on the basis of the merit list which was prepared in the year 1988. The gist of the grievance of the petitioners is that if they had also been appointed in the year 1988 along with successful candidates, who were much below the rank in the merit list of 1988, they would have, in the normal course, completed 10 years continuous service in class III cadre on 1.12.1998.
6. The petitioners have challenged the deferment of their appointment on variety of grounds. such as, the merit list was not prepared in accordance with law ; the rostering was done against the Government orders and rules ; that the reservation rules were not followed with the result those persons who were not ripe for appointment were successful in getting the appointment while the successful candidates who ranked much higher have been excluded and were given appointment after about an year. For instance, it was pointed out that the candidates at sl. Nos. 239, 258 and 270 in the merit list were given appointment in the year 1988 itself. It was further urged that though the successful candidates from sl. Nos. 1 to 40 were rightly given appointment, an arbitrary and differential treatment was meted out to the successful candidates from sl. Nos. 41 onwards. It was also pointed out that at least 28 candidates, who were legitimately entitled for appointment in 1988 itself, were given appointment in the year 1989 onwards. Sri D. S. Misra. learned counsel for the petitioners further pointed out that under the Rules, separate lists of selected candidates are required to be prepared for the posts of RGC and Typist while the appointments were illegally made from a composite and integrated list of all the selected candidates without regard to the fact whether a candidate was selected as RGC or a Typist.
7. In the counter-affidavit, filed by Sri T. M. Khan, Officer on Special Duty (Litigation) of this Court, certain circumstances have been mentioned which would go to establish that the pelitioners came to be appointed as RGC on their turn and that no injustice was done to them. He has maintained that the appointments were made keeping in view the placement of the selected candidates in roster which was prepared taking into consideration the Government orders and the reservation policy. It was clarified that the candidates at sl. Nos. 258, 259 and 270 belonged to Scheduled Caste and on account of rostering. they came within the first batch of the appointees of the year 1988.
8. The recruitment of class III posts in the establishment of this Court is made under the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter referred to as 'the Rules'). Rule 10 of the Rules provides for method of recruitment. This Rule as it stood originally, dealt with the method of selection for the posts of Typist and Routine Grade Assistants (for short 'RGA'). By amendment dated 9.11.1986. sub-rule (5) was added to Rule 10. which reads as follows :
"(5) in case of Typists a separate merit list shall be prepared on the basis of the marks obtained by them in the written examination, interview and type test."
The parent Rule 10 was amended on 27.10.1989 and as it stands, it deals with method of selection for the post of RGCs. Sub-rule (5) has also been deleted by the same amendment. Similarly, originally there existed a proviso to Rule 13 (1), which read as follows :
"Provided that in the case of Routine Grade Assistants and Typists a combined list shall be prepared by taking candidates alternatively the first name being from the list of Routine Grade Assistants."
The proviso was deleted by amendment dated 27.10.1989. A bare perusal of the aforesaid Rules would reveal that prior (o 9.6,1986, there used to be a common recruitment for the posts of RGC and Typist and another list was prepared in accordance with the then existing Rule 10 (4). By notification dated 12.8.1985 published on 9.11.1986. Rules 8.9.10 and 13 came to be amended and in view of sub-rule (5) to Rule 10, separate list of the selected candidates for the post of Typist was to be prepared and according to proviso to Rule 13 (1). a combined list of RGCs and Typist was prepared by taking candidates alternatively, the first one from the list of RGC. In the light of the aforesaid Rules, two separate lists were prepared in respect of the recruitment of 1988. A combined list based on rostering of the selected candidates was prepared giving adequate representation to different categories and reserved candidates. As a result of the rostering, the names of the petitioners did not find place in the first list of 100 candidates who were appointed in the year 1988. The petitioners were appointed in the year 1989 when the earlier list of 100 candidates stood exhausted.
9. Sri D. S. Misra, learned counsel for the petitioners urged that the procedure adopted by the respondents in bifurcating list and making the appointments, in batches, without regard to the posts of RGC and Typist, was not warranted under the Rules and that even the rostering of the candidates who had been appointed in 1988 was not correctly done. Be that as it may, serious objection has been taken on behalf of the respondents that the petitioners cannot be allowed to challenge the select list, rostering of the selected candidates and the manner in which the appointment orders were issued, after about a decade, particularly when the petitioners have accepted the appointments without any demur. grudge or objection in the year 1989. Sri Sunil Ambwani appearing on behalf of the respondents urged that the petitioners have not offered any explanation as to why the appointments which were made in 1988. are being challenged by them in 1999. In substance, the plea raised on behalf of the respondents is that of laches on the part of the petitioners on the ground that there is no understandable reason why the petitioners did not challenge the delay in making their appointments soon after the year 1989. Sri D. S. Misra, learned counsel for the petitioners repelled the submission made by Sri Ambwani on the ground that the doctrine of laches cannot be applied to the facts of the present case and. In any case, there is no rule of law that every petition, if it suffers from laches, should be dismissed. To fortify his contention, Sri Misra placed reliance on the decisions of the Apex Court in Ram Chandra Shankar Deodhar and others v. State of Mahashtra and others. AIR 1974 SC 259 and M/s. Dehri Rohtas Light Railway Co. Ltd. v. District Board Bhojpur and others, 1992 (2) SCC 598. It is true that the normal rule which says that the Court may not enquire Into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case. In Ram Cliandra Shankar Deodhar and others (supra). It was pointed out that the principle on which the Court proceeds in refusing relief to the petitlpner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. This principle was stated in the following terms in the case of Trilok Chand Moti Chand v. H. B. Munshi, AIR 1970 SC 898 :
"The party claiming fundamental rights must move the Court before other rights come into existence. The action of Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court."
10. In the case of R. N. Boss v. Union of India, AIR 1970 SC 470, it was observed that it would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. In the case of M/s. Dehri Rohtas Light Railway Co. Ltd. (supra), the Apex Court held that the principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches.
11. The question, thus, for eonsideration is whether the petitioners should be deprived of the relief on account of laches and delay. As said above, the delay itself is not sufficient to defeat their claim. But, certainly some plausible and reasonable explanation should have come on behalf of the petitioners. Sri D. S. Misra. learned counsel for the petitioners urged that some of the candidates, namely. Sharad Upadhyay, Sunil Kumar, and J. K. Jaiswal (Roll Nos. 8337, 8717 and 3547 respectively) had made a representation to the Hon'ble the Chief Justice on 15.9.1989, a copy of which is Annexure-7 to the writ petition, and that the merit list prepared as a result of rosterlng has further been challenged by filing Civil Misc. Writ Petition No. 21928 of 1989. Sharad Upadhyay and others v. Hon. Chief Justice. High Court, Allahabad and others. No order has been passed cm the representation and the writ petition is still pending. Therefore.
the challenge of the merit list prepared in 1988 by the petitioners by means of the present writ petition cannot be said to be belated. Sri Sunil Ambwani urged that the representation or the writ petition filed by other candidates would certainly not ennure for the benefit of the petitioners in explaining the delay. It was pointed out that a Division Bench of this Court in the case of R. C. Mongol v. Government of U. P. and others, 1971 ALJ 1403, had taken the view that mere filing of a writ petition by another person cannot justify inaction on the part of the petitioner. In that ease, propriety of an order made tn the years 1995 and 1996 was challenged by filing a writ petition after about 15 years. It was held that the High Court was Justified in not permitting the petitioner to challenge such orders and that the petitioner cannot be allowed to base explanation of his inaction in the matter on the footing that some other challenged the orders by means of a writ petition at an earlier stage. The present petitioners have never challenged the delay in making their appointments in the year 1989. As a matter of fact, they gleefully accepted the appointment in 1989 and since then continued to work initially as RGC and later on the post of LDA since 1991. No explanation or Justification has been offered by them for their inaction in challenging the method of appointment in respect of the recruitment which was made in the year 1988. Moreover, in case the petitioners are treated to have been appointed tn 1988, it would, by necessary implication disturb the seniority of those persons who were actually appointed in that year and are admittedly presently senior to the petitioners. The affected persons have not been impleaded as party to the present writ petition. The vested rights of the seniors to the petitioners would be seriously affected and jecopardized if the controversy is allowed to be raked up after lapse of one decade.
12. Sri Sunil Ambwani has placed reliance on the decision of Apex Court in N. K. Krishna Swamt and others v. Union of India and others, AIR 1973 SC 1161. In which case some ten years later a direct recruit challenged the correctness of the seniority list of Income-tax Officer prepared by the Government. His complaint was that more vacancies were given to the promotees than they were entitled to under the Rules and that by artificial rule which gave promotees welghtage in seniority, his own seniority in the merit list had been considerably affected. Lamenting upon the attitude of the High Court, the Apex Court observed that if the High Court had applied its mind to the facts of the case, it would have ever entertained such stale claims in service matters. A reference was also made to another decision in State of Orissa v. Arun Kumar Pathak, AIR 1976 SC 1639, in which petition was held to be not maintainable on the ground that there was long and inexplicable delay and the grievance was too stale to merit redress.
13. In my view, it would be highly incredible to assume that the petitioners were unaware of their service horoscope. The petitioners came to be promoted to the post of LDAs in the year 1991 on the basis that they joined as RGCs in the year 1989. They knew it full well that they would be entitled to appear in the Bench Secretary Grade II Examination after completing ten years continuous service in class III cadre. In spite of this fact, they did not raise any objection against their delayed appointment. Obviously, the grievance of the petitioners made in the present writ petition with regard to their delayed appointment in the year 1989 is not only stale but devoid of any merits. Since the Judgment is going to disappoint the petitioners, it may be made clear that the fact remains that the petitioners joined the establishment of this Court as RGC for the first time in the year 1989. The qualifying period of ten years' service has, of necessity, to be reckoned from the date of their actual appointment. There is nothing like 'deemed', 'notional' or 'fictional' appointment for the purpose of determining the length of service of continuous ten years. The concept of 'deemed', 'notional' or 'fictional' appointment is alien to the expression of 'actual continuous service of ten years'. The expression 'continuous service of ten years' implies that an official must have actually put in 'continuous service of ten years' as clerk, or in class III cadre, in the establishment of this Court. The deemed period of service, if any, shall not expand the length of shorter period of actual working. Therefore, even if it be taken that the appointment of the petitioners was illegally postponed by one year for the reasons pleaded by them, the undisputed fact is that on 1.12.1998, the petitioners had not actually put in 10 years' continuous service and since they fell short of the aforesaid requirement, they were not eligible to appear in the departmental examination for promotion to the post of Bench Secretary Grade II. The appearance of the petitioners in the examination on the strength of the interim order of this Court, therefore. was otiose and of no consequence.
14. In the conspectus of the above facts, there should be no hesitation tn recording the finding that the petitioners were not eligible to appear in the departmental examination for promotion to the post of Bench Secretary, Grade II as their experience in class III radre fell short of the essential requirement of ten years. The writ petition, therefore, turns out to be devoid of merits and substance. It is accordingly dismissed. No orders as to costs.