ORDER Dubey, J. -- 1. This is an appeal under Clause 10 of the Letters Patent against the order dated 15th July, 1996 passed in M.P. No. 2247 of 1989 by a learned Single Judge of this Court. 2. The facts giving rise to this appeal are thus: The respondent No. I was recruited to Judicial service as Civil Judge, Class II on 14.9.1964. He was confirmed on that post on 14.3.67. He was promoted as Civil Judge Class I on 1.1.76. He was selected for appointment as Chief Judicial Magistrate in the High Court meeting held on 10.10.76 and he took over charge as Chief Judicial Magistrate on 1.2.77. In the gradation list of Judicial Officers as on 1.10.79, published by the High Court, the respondent No. I in the seniority list of Civil Judges Class I and Chief Judicial Magistrate/Additional Chief Judicial Magistrate was below Shri Shambhoo Singh and above Ku. Usha Shukla. 3. The respondent No. 1's case for promotion as officiating Additional District & Sessions Judge in the erstwhile cadre of Additional District & Sessions Judges came up for consideration for the first time in the High Court meeting held on 10th and 11th of August 1979. In that meeting his case for promotion as officiating Additional District & Sessions Judge was postponed. His immediate junior Ku. Usha Shukla now a sitting Judge of this Court, was selected for promotion. In the full Court meeting held on 11th and 12th April, 1980, it was resolved that a departmental enquiry be held against the respondent No. I who at the relevant time was working as Chief Judicial Magistrate, Morena. 4. The State Government constituted a single cadre of District & Sessions Judges in the Higher Judicial Service w.e.f. 24.2.81 abolishing the post in the former cadre of Additional District & Sessions Judges. The case of respondent No.1 for promotion as officiating District & Sessions Judge in Higher Judicial Service was considered in the full Court meeting held on 28th and 29th August 1981 and after consideration his case for promotion was postponed. Ten Officers junior to him were however selected for promotion in that meeting. The case of respondent No. I for promotion again came up for consideration in the full Court meeting between 29.4.82 to I st May 1982 and again his case was postponed resulting in selection of 9 other juniors. 5. Ten Officers junior to him were however selected for promotion in that meeting. The case of respondent No. I for promotion again came up for consideration in the full Court meeting between 29.4.82 to I st May 1982 and again his case was postponed resulting in selection of 9 other juniors. 5. In full Court meeting held on 28th and 29th April 1983 the report of the departmental enquiry against the respondent No. I having been received it was resolved that the report of the enquiry officer be tentatively accepted and a notice to show cause against proposed punishment of dismissal was issued to the respondent No. I and, therefore, the respondent No. 1 was declared as found not fit for promotion. In the meeting held on 26th, 27th and 28th April, 1984 the case for promotion of the respondent No.1 was again postponed as in the same meeting the report of the enquiry held against the respondent No.1 was accepted and he was warned for the charges found proved against him. Thereafter in the meeting of the full Court held between 28th April to 5th May 1984, the respondent No. 1' s case was postponed. Then in the full Court meeting of 3rd, 4th and 5th May, 1985, the respondent No.1 was promoted as officiating District and Sessions Judge. The respondent No.1 represented against his supersession and delayed promotion. His representation was last rejected on 30th January, 1989, thereafter, the respondent No.1 filed a writ petition under Article 226 of the Constitution of India, challenging his supersession in Higher Judicial Service for the period 1981 to 1984and prayed for proforma promotion in Higher Judicial Service and his due placement in the seniority list above all promotees who were junior to him as Chief Judicial Magistrate. The respondent No.1 also challenged the Gradation List maintained as an 1.8.1988 directing the respondent No.2 State to prepare a Gradation List placing the respondent No.1 at his right place. 6. The learned Single Judge having heard the counsel for the parties and on carefully going through the record rejected preliminary objection of the appellant and that of respondent No.2 for dismissal of the petition on the ground of laches observing that the representation of the respondent No.1 was last rejected by the High Court vide memorandum dated 30th January, 1989 (Annexure-H to the petition) and accordingly he was informed. The learned Judge observed that the respondent No. I took up the matter before the Grievance Committee of the High Court earlier to that, therefore, the respondent No. 1 was throughout diligently prosecuting the matter on the administrative side of the High Court. The other preliminary objection of the appellant that the relief cannot be granted by the Court for non-joinder of other junior Judicial Officers who were promoted earlier to the respondent No.1 is not a hurdle for grant of relief for his retrospective consideration for promotion. It was difficult for the respondent No. I at this stage to predicate as to from which years he would be able to earn and would be given seniority on such re-consideration in the promotion cadre. Therefore, the non-joinder of the officers junior to him cannot be held to fatal in view of the relief granted to the respondent No.1 by quashing the resolution of the full Court passed on date between 28th to 30th April, 1983 declaring the respondent No.1 unfit for promotion and directing the appellant to place the case of the respondent No.1 in the next meeting of the full Court for considering him for retrospective promotion for the period between 1979 to 1984. On such retrospective consideration if the respondent No.1 is found fit for promotion in a particular year he be granted seniority in the Higher Judicial Service by his proper placement in the seniority list. 7. On merits the learned Single Judge observed that the case for promotion of respondent No.1 because of the pending enquiry against him was postponed in full Court meeting of August 1981 and in April 1982 rightly awaiting the enquiry report. In the full Court meeting of 1983 the enquiry report was received which, it appears, was to some extent adverse. Therefore, full Court decided to issue a notice for punishment, proposing a major penalty but he could not have been declared unfit for promotion until a major penalty is imposed. In the full Court meeting held in the year 1984 the enquiry report was considered and the full Court took a decision to award only a 'warning' which did not amount to a punishment. In this meeting too, after awarding a warning, the case of the respondent No. 1 was postponed even the disciplinary departmental enquiry ended in not awarding any punishment except of warning. In this meeting too, after awarding a warning, the case of the respondent No. 1 was postponed even the disciplinary departmental enquiry ended in not awarding any punishment except of warning. It is only in the full Court meeting held in the year 1985, the respondent No. 1 was found fit for promotion and earned the same by issuance of the order in his favour. The learned Single Judge found that postponment of respondent No.1's case from consideration for promotion from 1979 to 1984 and in adjudicating him unfit for promotion in 1983 was only as a result of long pending enquiry and communication of one adverse confidential report by the then District Judge, Morena which related to the same misconduct of which the charges were levelled in the charge-sheet. Therefore, the learned single Judge observed that even assuming that one adverse confidential report and the enquiry which resulted in issuance of warning constituted adverse material worth consideration, the said material could not be held as grave as to justify the continuous supersession from 1979 to 1984 of the respondent No.1. Therefore, the learned single Judge was of the view that as sealed cover procedure at the relevant time was not applicable and the case of respondent No. 1 for promotion was postponed between 1979 and 1982, he, therefore, deserved consideration for promotion in those years. Mere issuance of notice proposing punishment at the time of full Court meeting in 1983 was not a valid consideration for declaring the respondent No. I unfit for promotion. The learned single Judge further observed that it is difficult to visualise, in the absence of clear averments in the return of the High Court, as to what particular service record of the respondent No.1 formed basis for the full Court not to consider him for promotion after conclusion of enquiry in 1983, retrospectively from 1979 except the enquiry report and one adverse confidential report of the District Judge, Morena ending March 1979 on which the disciplinary enquiry was initiated. Hence, learned Judge quashed the resolution of the full Court meeting held between 28th and 30th April, 1983. 8. Hence, learned Judge quashed the resolution of the full Court meeting held between 28th and 30th April, 1983. 8. Shri Ravindra Shrivastava, learned counsel for the appellant, while agitating the ground of unexplained delay in filing the writ petition and non-impleadment of juniors who were promoted during that period, contended that the decision of the full Court in the meeting held from 28th to 30th April, 1983 was fully supported by relevant material and reason in regard to the report of the enquiry which was accepted and adverse confidential report for the year 1982 and 1983 which were communicated to the respondent No.1 by D.O. letter of the Registrar dated 15th September, 1982 and 1st October, 1983. These were the additional material on that the full Court after the deliberations took the decision which cannot be said to be illegal, arbitrary or fanciful. Therefore, the' direction of the learned single Judge is illegal. Learned counsel placed confidentials of the respondent No.1 for the perusal of this Court and submitted that formation of the opinion by the full Court was by a subjective process of which there could not have been any judicial review. Therefore, it cannot be said that the opinion of the full Court expressed in its meeting was without any material. Learned counsel cited Berium Chemicals Ltd. v. Company Law Board and others ( AIR 1967 SC 295 ), Rohtas Industries Ltd. v. S.D. Agarwal and another ( AIR 1969 SC 707 ) Rameshwar Prasad v. State of Bihar and others ( AIR 1980 SC 104 ), Smt. Beena Tiwari andanotherv. State of M.P. and another ( AIR 1988 SC 488 ), The Registrar High Court of Madras v. R. Rajiah ( AIR 1988 SC 1388 ), Union of India etc. etc. v. K. V. Jankirama etc. etc. ( AIR 1991 SC 2010 ), High Court of M.P. v. Mahesh Prakash and others ( AIR 1994 SC 2595 ), and Major Generall.P.S. Dewas v. Union of India and others [ (1995) 3 SCC 383 . 9. Shri V.S. Shroti, learned counsel for respondent No.1 submitted that the total case of the respondent No.1 is that he was never considered for promotion since 1979 and his case was being postponed. The grounds on which his case was postponed were never communicated. 9. Shri V.S. Shroti, learned counsel for respondent No.1 submitted that the total case of the respondent No.1 is that he was never considered for promotion since 1979 and his case was being postponed. The grounds on which his case was postponed were never communicated. From the return filed in the writ petition itself it is evident that there was no assessment of material. The postponement was only for the reason of long pendency of an enquiry against the respondent No.1 and the then District Judge, Shri M.M. Dubey. The Enquiry Officer out of seven charges found only one charge proved against the respondent No.1 on account of irregularities and/or clerical mistake. The High Court in its wisdom on the material and in the circumstances issued a simple warning to the respondent No.1 as well to Shri M.M. Dubey in the full Court meeting of 28th to 30th April, 1983. But Shri M.M. Dubey was bestowed with all higher grades including senior Selection Grade while the respondent No.1 was considered for promotion in the year 1985 only. Thus the respondent 1 was noted out with a hostile discrimination violative of Art. 14 & 16 of the Constitution. On the remarks in the ACR recorded by Shri M.M. Dubey though the representation made against the same was rejected, but the charge-sheet was also based on the same lines. The respondent No.1 is an honest, upright, punctual and devoted officer who had been superseded for no fault on his. He had been giving a high disposal and was graded by other District Judges in category 'B' or 'C'. Out of the grading categories' A' 'B' 'C' 'D' & 'E', 'A' stands for outstanding, 'B' for very good, 'C' for good, 'D' for average and 'E' for poor. Learned counsel also submitted that the enquiry report could not have been taken into consideration as to find the respondent No. I unfit for promotion unless a final decision is taken on that. Adverse material not communicated to the respondent No.1 could also not have been taken into account. Therefore, the decision of the full Court of the year 1983 was rightly quashed by the learned single Judge. Adverse material not communicated to the respondent No.1 could also not have been taken into account. Therefore, the decision of the full Court of the year 1983 was rightly quashed by the learned single Judge. It was further submitted that the decisions relied by the learned counsel for the appellant have no bearing as most of the cases relate to the case of compulsory retirement wherein over all performance of an employee is taken into account. He placed reliance on Gurdial Singh Fijji v. State of Punjab and others ( AIR 1979 SC 1622 ), State of M.P. v. Bani Singh and another (1990 JLJ 319 = AIR 1990 SC 1308 ) Shiv Kumar Sharma v. HaryanaState Electricity Board, Chandigarh ( AIR 1988 SC 1673 ) Vijay Kumar IAS. v. State of Maharashtra and others ( AIR 1988 SC 2060 ) State Bank of India v. Kashinath Kherand others ( AIR 1996 SC 1328 ), A. Janardhana v. Union of India and others ( AIR 1983 SC 769 ) and V.P. Shrivastava and others v. State of M.P. and another (1996 AIR SC 946). 10. At the outset we may say that the learned counsel for the appellant could not state any reason that after conclusion of the enquiry and show cause notice what was the cause for postponing consideration of the case of the respondent No. I for promotion in the meeting of full Court held on 26th, 27th and 28th April, 1984 when the decision was taken to issue only a warning in the same meeting. Before us also no material was placed for such postponement. Therefore, postponement of case of the respondent No.1 for promotion was not proper in the full Court meeting held from 26th to 28th April, 1984. 11. From the ACR of the year 1.4.1979 to 31.3.1980 the respondent No.1 was graded 'C' by the then District Judge, Indore Shri Y.B. Suryavanshi who was later elevated to the Bench (since retired). ACR for the period from 16.6.1980 till31.3.1981 was written by the District Judge, Durg, who found him "punctual, sincere, curtious and obedient who fulfills the concept of an ideal Judge. Judges should learn a leason from him." Even the supersession and ailment could not prove impediments to his hard work. His honesty was found phenomenal. His disposal was found above average. Judges should learn a leason from him." Even the supersession and ailment could not prove impediments to his hard work. His honesty was found phenomenal. His disposal was found above average. He was found to have a very good grasp of criminal law . ACR for the period ending on 31st March 1982 was written by Shri R.D. Shukla, the then District Judge, presently a sitting Judge of this Court. While giving an advisory remark to decide civil cases, he found him on over all performance a good Judicial Officer deserves to be commended and graded him in Category 'B'. ACR for the period ending on 31 st March 1983 when the respondent No.1 was posted as Civil Judge, Class I, Chhindwara was written by Shri K.K. Verma, District & Sessions Judge, who was later elevated to the Bench (since retired). Considering his behaviour, relation, etc. he found his judicial performance satisfactory rated him in category 'C' and gave an advisory remark for improvement on the civil side in scrutiny of pleadings for the purpose of framing of issues and application of law to the admitted and proved facts in judgment. For the period ending on 31 st March, 1984 the District & Sessions Judge, Mandla while giving a remark honest and sincere worker, well behaved, knowledge of law, disposal satisfactory, he has good control over subordinate staff, good reputation regarding integrity and impartiality, rated him in category 'C' . ACR for the period ending on 31st March 1985 was also written by District & Sessions Judge, Mandla rating him in category 'C'. 12. We have stated this narration only for the purpose that the argument relating to ACR 1981, 82, 83 and 84 was advanced before us and those ACRs of the respondent No.1 were given to us for perusal. From the ACRs we do not find any justification for postponing the case of the respondent No. 1 for consideration and/or for declaring him unfit for promotion in the year 1983 as none of the reports is adverse, but, at the most is advisory. Therefore, in the opinion of this Court, learned single Judge rightly observed that the case of the respondent No.1 was postponed only because of the long pendency of the enquiry. Therefore, in the opinion of this Court, learned single Judge rightly observed that the case of the respondent No.1 was postponed only because of the long pendency of the enquiry. In the year 1983, he was not found fit because of the show cause notice issued to the respondent No.1 on the basis of the said enquiry. 13. True, Article 235 vests in the High Court administrative, judicial and disciplinary control over members of the Judicial Service. The Chief Justice of the High Court and other brother Judges of the High Court in appreciating merits and de-merits of the subordinate Judges for taking decision regarding confirmation, promotion, supersession and the like of the subordinate Judges decisions are taken in full Court, hence such decisions taken in full Court meeting after due deleberation cannot be said to be arbitrary or motivated. 14. It is also true, the formation of opinion by subjective process based on the material cannot be subjected to judicial review as an appellate authority, unless action is malafide and arbitrary in the matter of consideration of a case for promotion. But, Article 16 of the Constitution of India requires that a case of employee similarly situated and eligible for promotion must be considered before others are promoted. If it is established that the case of employee was not considered at all, then certainly, it will be a case for interference. The present case is of that nature. The case of the respondent No. I was not considered for promotion because of the pending enquiry as the sealed cover procedure was not applicable. 15. It is only in full Court meeting held on 28th to 30th April, 1983, when the enquiry report came, full Court took a decision to issue a show cause notice and it appears for this reason the respondent No. 1 was not found fit for promotion. Ultimately, the full Court after considering over all circumstances, did not punish but administered a warning, a note of caution which is not a punishment, either major or minor, under rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 as is the view taken by this Court in case of G.D. Bhattacharya v. The State of M.P. and others (M.P. No. 4045/1981), followed by the learned single Judge. The respondent No. I was not visited even the penalty of 'censure' indicating that he was not blameworthy. It is well established since the decision in case of Parshottam Lal Dhingra v. Union of India (AIR 1988 SC 36), that if as a consequence of departmental enquiry penal consequences follow, it would amount to punishment. A warning may only amount to "harsh words". Therefore, in our opinion, the learned single Judge rightly took the view that mere issuance of notice proposing punishment at the time of full Court meeting in the year 1983 was not a valid consideration for declaring the respondent No. I not fit for promotion and, therefore, the process of taking the decision was challengeable on the ground of non-availability of material. It was also challengeable because the respondent No.1 suffered hard blows of unjust supersession by postponement of consideration of the case for promotion when it was due. 16. Regarding laches: There is no rule that merely on the ground of laches the petition has to be thrown but it is a rule of practice and in peculiar circumstances of the case when the representation of respondent No. I •was last rejected vide order dated 30.1.1989 the respondent No. I having lost hopes filed the writ petition immediately thereafter. The petition was admitted and was heard finally and a decision was rendered on merits by the learned Single Judge. Therefore, on account of alleged laches, in our opinion, the rightful claim against injustice caused to him, cannot be thrown out particularly when in the opinion of the learned single Judge, the delay was satisfactorily explained. 17. Re. non-joinder of necessary parties : In case of determination of seniority non-joinder of affected parties would not be fatal as the High Court and State were impleaded as parties. Besides, the learned single Judge has directed only reconsideration of the case of the respondent No. I and if he is found fit for promotion to fix his seniority accordingly. Therefore, non-impleadment of the Judicial Officers who superseded the respondent No. I will not affect the case of the respondent No. I. To say so we take support from the decision of the Supreme Court in case of V.P. Shrivastava and others v. State of M.P. and another (supra). 18. In the result, we do not find any error in the order passed by the learned single Judge. 18. In the result, we do not find any error in the order passed by the learned single Judge. Accordingly, the appeal fails and is dismissed with no order as to costs.