B.S. BAJWA AND ANR.versusSTATE OF PUNJAB AND ORS.

                            B.S. BAJWA AND ANR.                                         A
                                     v.
                         STATE OF PUNJAB AND ORS.

                                DECEMBER 11, 1997

          (A.M. AHMADI, CJ., B.N. KIRPAL AND V.N. KHARE, JJ.]                           B

          Constitution of India, 1950 : Article 226.

           Writ-Lache~~Dismissal for.


           Service law-Se11i01ity-Gaim for senio1ity after inordinate delay-Per-        c
    missibility of-Appelfants granted Short Service Commission in Anny-On
    being released from Anny they joined P. W.D. (B & R)-Dwing a period of


-   more than a decade they were shown junior to other persons-Promotion also
    made in the meantime-No document produced to show that they ever
    objected to their position in the gradation list-W!it filed after a decade
    claiming se11i01ity--Held in service matters the question of seniority should
                                                                                        D

    not be re-opened after the lapse of a reasonable period because that results
    in disturbing the settled position which is not justifiable-T7iere was inordinate
    delay in the present case for making such a giievance-This alone was
    sufficient to decline interference under A1ticle 226 and to reject the w1it
    petition-Constitution of lndia-Articie 226.                                         E

           Practice and Procedure-Concession made by Counsel-Effect of-Ap-
    peal involving se11i01ity dispute-Advocate General appeming for State-Con-
    cession made by him 011 point of law-Held not binding on State or anyone
    else adversely affected thereby.
                                                                                        F
          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7605-
    7610 of 1996.

          From the Judgment and Order dated 21.12.1994 of the Punjab and
    Haryana High Court in L.P.A. Nos. 424, 425 & 483 of 1986 and C.W.P.                 G
    Nos. 4958, 5777 of 1985 and 2922 of 1986.

          Appellant-in-person, T.N. Singh for the Appellants.

         V.C. Mahajan and M.L. Varma, R.D. Bawa, P.N. Puri, S.S. Sodhi,
    Ms. Madhu Moolchandani and Ms. B.K. Brar, Advocates with them for                   H
                                  451
    452                   SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A the Respondents.
          The following Order of the Court was delivered :

          Delay condoned. Leave granted in SLP Nos. 23599-23600/97 {CC
    Nos. 8677-8678/97).
B
    CA. 7605-7610/96
          These appeals by special leave are against the Judgment dated 21st
    December, 1994 of the Division Bench in Letters Patent Appeal arising out
C   of the judgment dated 2:5.4.1986 of the Single Judge in Civil Writ Petition
    No. 772of1984 which was filed in the High Court by B.S. Bajwa and B.D.
    Gupta. The grievance made by them was, in substance, with regard to their
    seniority and placement in the gradation list of the department.


D
           The material facts in brief are this. Both B.S. Bajwa and B.D. Gupta
    joined the Army and were granted Short Service Commission on 30th
                                                                                       -
    March, 1963 and 30th October, 1963 respectively when they were students
    in the final year of the Engineering Degree Course. B.S. Bajwa graduated
    thereafter in June, 1963 and B.D. Gupta graduated in 1964. On being
    released from the Army B.S. Bajwa joined the PWD (B&R) on 4.5.1971
E   and B.D. Gupta joined. the same department on 12th May, 1972. There
    position in the gradation list was shown throughout with reference to these
    dates of joining the department. It is sufficient to state that throughout their
    career as Assistant Engineer, Executive Engineer and Superintending
    Engineer both B.S. Bajwa and B.D. Gupta were shown as juniors to B.L.
    Bansal, Nirmal Singh, G.R. Chaudhary, D.P. Bajaj and Jagir Singh. It is
F   also undisputed that B.L. Bansal, Nirmal Singh, G.R. Chaudhary, D.P.
    Bajaj and J agir Singh got their promotions as Executive Engineer select
    grade and promotion as Superintending Engineer prior to B.S. Bajwa and
     B.D. Gupta. It is obvious that the grievance, if any, of B.S. Bajwa and B.D.
     Gupta to their placement below B.L. Bansal, Nirmal Singh, G.R.
G   Chaudhary, D.P. Bajaj and Jagir Singh should have been from the very
     inception of their cam:r in the department, i.e. from 1971-72. Howevet, it
     was only in the year 1984 that B.S. Bajwa and B.D. Gupta filed the
     aforesaid writ petition in the High Court claiming a much earlier date of
     appointment in the department. The learned Single Judge allowed the writ
H    petition which led to Letter Patent Appeal No. 424/86 being filed by B.L.
                           B.S. BAJWAv. STATE                             453

Bansal, Nirmal Singh, G.R. Chaudhary, D.P. Bajaj and Jagir Singh befor~          A
a Division Bench of the High Court.

       By the impugned judgment the Letters Patent Appeal is said to have
been allowed but in fact it amounts to dismissal of that LPA inasmuch as
it granted certain benefits to S.S. Bajwa and B.D. Gupta which has the
effect of making B.S. Bajwa and B.D. Gupta senior to th~ others by ~jying
                                                                                 B
them· a much earlier date of appointment in the department with effc::ct
from 6.4.1964 instead of 4.5.71 and 12.5.72. B.S. Bajwa and B.D. Gupta
have preferred these appeals (CA No. 7605-7610/96) despite even with this
benefit and they claimed an even earlier date of appointment with
reference to the date on which they were granted the Short Service               C
Commission on 30th March? 1963 and 30th October, 1963. On the other
hand, the grievance of D.P. Bajaj and Jagir Singh filed appeal as to grant
of benefit of the date 6.4.1964 to B.S. Bajwa and B.D. Gupta because it
affects their seniority in the cadre and would also adversely affect their
prospects inspite of their earlier promotion to the cadre of Executive           D
Engineer and Superintending Engineer.

      It is significant that the Division Bench in the LPA, while dealing
with the question of !aches in filing the writ petition, came to the following
conclusion :                                                                     E
            "It is not disputed that in the confirmation list of P.W.D. (B&R)
        Branch published from time. to time, the writ petitioners were
        shown junior than the appellants herein. No document has been
        produced on the record to show that they had ever objected to
        their positiol). in the gradation list or prayed for the grant of the    F
        benefits claimed by them in the writ petitions filed in this Court.

            It also cannot be denied that the acceptance of the writ petition
        would adversely affect the service conditions of the in - service
        employees like the appellants by altering their seniority and putting G
        them to disadvantageous position. Administrative instructions or
        the Rules could not be altered to their disadvantage. The intention
        of the Rule making authority is not so clear as to unambigously
        hold the intention for conferment of the benefits in favour of the
        writ petitioners."                                                    H
    454                   SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.

A           Obviously on this conclusion alone the writ petition should have been
    dismissed by setting aside the judgment of the Single Judge allowing the
    LPA without any caveat However, the Division Bench, after reaching the
    above conclusion, proceeded to grant the benefit of a much earlier date,
    namely, 6.4.1964 as the date of appointment on the basis of a concession
B   of the Additional Advocate General made therein without considering the
    effect of the same or of taking into account the inconsistency with its earlier
    finding. We have no doubt that the concession on this point, being one of
    law, it cannot bind the State and, therefore, it was open to the State to
    withdraw as it has been done by filing a review petition in the High Court
C   itself. That apart that concession made on behalf of the State cannot bind
    D.P. Bajaj and Jagir Singh or anyone-else who would be adversely affected
    thereby. Those persons, therefore, have an independent right to assail that
    view taken by the Division Bench. It is with regard to this part of the



D
    judgment of which we say that even though the LPA is said to have been
    allowed but it has the effect and in reality of being dismissed because it
    grants certain benefits to B.S. Bajwa and B.D. Gupta who were the
    respondents therein.
                                                                                      -
           Having heard both sides we are satisfied that the writ petition was
    wrongly entertained and allowed by the Single Judge and, therefore, the
E   judgments of the Single Judge and the Division Bench have both to be set
    asid~. The undisputed facts appearing from the record are alone sufficient
    to dismiss the writ petition on the ground of laches because the grievance
    made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they
    had entered the department in 1971-72. During this entire period of more
F   than a decade they were all along treated as junior to the other aforesaid
    persons and the rights inter se had crystalised which ought not to have been
    re-opened after the lapse of such a long period. At every stage the others
    were promoted before B.S. Bajwa and B.D. Gupta and this position was
    known to B.S. Bajwa and B.D. Gupta right from the beginning as found by
G   the Division Bench itself. It is well settled that in service matters the
    question of seniority should not be re-opened in such situations after the
    lapse of a reasonable period because that results in disturbing the settled
    position which is not justifiable. There was inordinate delay in the present
    case for making such a grievance. This alone was sufficient to decline
H    interference under Article 226 and to reject the writ petition._
                           B.S.BAJWAv. STATE                              455

       In view of the above conclusion it is not necessary for us to express     A
any opinion on the merits of the point raised by B.S. Bajwa and B.D.
Gupta. We make it clear that the view thereon taken by the High Court is
not to be treated as concluded or having affirmation of any kind. The
appeals of B.S. Bajwa and B.D. Gupta are dismissed and the appeal filed
by D.P. Bajaj and Jagir Singh is allowed. With the result that the judgment      B
of the Single Judge of the High Court is set aside and the writ petition filed
by B.S. Bajwa and B.D. Gupta stand dismissed.

C:.A 7611-7614/96

      For the reasons stated above, these appeals are dismissed.
                                                                                 c
C.A Nos. 8914-15197 in SLP ((;)No. 23599- 23600/97
(CC Nos. 8677-8678/97)

      For the reasons stated above, these appeals are allowed.

T.N.A.                                           C.A. No. 7605-7610/96 and       D
                                             C.A. No. 7611-14/96 dismissed.
                                                   C.A. No. 8914-15/97 and
                                               C.A. No. 8677-78/97 allowed.