S. B. SINHA ( 1 ) THESE writ petitions arise out of order dated 20. 2. 2001 passed by the Central administrative Tribunal, Principal Bench, New Delhi in several Original Applications filed by the petitioners herein whereby and whereunder the O. As. filed by them were dismissed. ( 2 ) FACTS involved in all the matters are almost identical. ( 3 ) HOWEVER, we will notice the facts only from CWP 5540/2001. The petitioner appeared in civil Service Examination, 1991 pursuant to an advertisement issued by UPSC. The results of the said examination were declared on 13-9-1992. His rank in the overall merit list was 538. He was selected and recruited to Central Civil Services Groups A and B. He pursuant to instructions received by the Dopt dated 26-9-1992, joined foundation course at S. V. P. National Police Academy, Hyderabad. On conclusion of the said course, he was allotted customs Appraisers Service Group-B. A formal letter of appointment was issued on 8. 2. 1993 wherein his date of joining was given with retrospective effect from 12-10-1992 i. e. the date of joining the foundation course. ( 4 ) THE petitioner from an affidavit filed by the Central Board of Excise and Customs before the Supreme Court came to know that 801 posts of Assistant Commissioner of promotee quota had been diverted from 1980 to 1996. He further came to learn that 92 officers were promoted to posts of Assistant Commissioner from various feeder cadres just 10 days prior to declaration of final result by the UPSC and even 185 adhoc promotions had been made, the details whereof are as under: sl. Promotion order No. of Adhoc no. No. and date promotions. 1. 242/91 dt. 17. 7. 1991 1 2. 244/91 dt. 31. 7. 1991 1 3. 262/91 dt. 14. 8. 1991 36 4. 283/91 dt. 5. 9. 1991 1 5. 344/91 dt. 04,11. 1991 1 6. 42/92 dt. 06. 02. 1992 48 7. 44/92 dt. 07. 02. 1992 1 8. 68/92 dt. 09. 03. 1992 1 9. 126/92 dt. 27. 05. 1992 3 10 225/92 dt. 03. 09. 1992 92 ( 5 ) THE contention of the petitioner is that whereas number of direct recruits as per 1991 examination were only 60 and as per allocation list maintained on the basis of Civil Services examination, 1991, candidates only upto rank 534 were absorbed in Group- a Services. 126/92 dt. 27. 05. 1992 3 10 225/92 dt. 03. 09. 1992 92 ( 5 ) THE contention of the petitioner is that whereas number of direct recruits as per 1991 examination were only 60 and as per allocation list maintained on the basis of Civil Services examination, 1991, candidates only upto rank 534 were absorbed in Group- a Services. Had the correct number of vacancies been intimated as per rules, according to the petitioner, having regard to the fact that services had not been allotted at the time of joining the foundation course, there existed a fair chance of their being allotted Central Civil Services group- a . They were not aware about the existence of split vacancies in a particular year with the result that successful candidates accepted allocation in the hope that every thing must have been fair with the system of allocation of services in the absence of transparency. Having regard to lack of transparency the actual number of vacancies existing in particular service were not known. The respondents, it is alleged, have been protecting the vested interest by not releasing actual vacancies which were meant for direct recruits. ( 6 ) THE petitioners filed Original Applications before the Central Administrative Tribunal, principal Bench, as the said action of the respondent was contrary to Indian Customs and central Excise Rules, 1987 ( the said rules ). In the said O. A. the petitioner, inter alia contended that one Kishori Lal Bablani filed an O. A. , bearing No. 11/92 wherein appropriate relief was granted by the Central Administrative Tribunal Bombay, although his case was weaker than that of the petitioner. THE contentions of the respondent in the said OA were : a) the OA suffers from mis-joinder of parties,b) having accepted Group-B posts they are estopped from claiming Group-A posts. c) Even if any relief is granted, the same would affect number of other services. d) The petitioner did not have any legal right to be appointed in ICandces. e) Such a claim if accepted would tantamount to fresh selection in 1999 instead of 1991 which would not subserve the interest of justice and fair play. The claim of the petitioner has been based on Bablani s case, the same has been set aside and upset by the Supreme court in appeal and the O. A. was not maintainable. e) Such a claim if accepted would tantamount to fresh selection in 1999 instead of 1991 which would not subserve the interest of justice and fair play. The claim of the petitioner has been based on Bablani s case, the same has been set aside and upset by the Supreme court in appeal and the O. A. was not maintainable. f) For the purpose of giving effect to quota of direct recruits and promotees, i. e. 50% each, only permanent vacancies are taken into consideration. Merit of the matters, however, was not traversed in the counter affidavit filed by the respondents. ( 7 ) THE contentions of the petitioner, as regards the said preliminary objections were as under. ( 8 ) ALTHOUGH letter of appointment was issued on 8. 2. 1993, but he having come to know about diversion of posts in June, 1998, he made representation on 22. 6. 1998 and finding no response thereto filed OA on 19. 2. 1999. There was, thus, no delay on his part. As regards, non-joinder of parties, it was contended that action of the respondents being related to a faulty policy decision, namely, diversion of posts in question, it was not necessary to implead all the persons as parties. ( 9 ) THE petitioners also contended that they having not been aware of diversion of posts, principle of estoppel will have no application. The petitioner referred to the following observations made by the Tribunal in Raj Singh Naulakha Vs UOI, 1993 (9) All India Service law Journal 168 : "it [cj1] is clear from the aforesaid OM that the prospective candidates have a right to know the number of vacancies forwhich the examination is being conducted. The ministry/department concerned is also under an obligation to assess carefully and intimate the UPSC the number of vacancies required to be filled during a particular recruitment year with due regard to all relevant consideration including the vacancies likely to occur as a result of retirement, promotion etc. Even the vacancies arising thereafter to which the results are announced should be notified to the UPSC. In other words, firm requirement are required to be intimated to the UPSC well before the results are announced. Even the vacancies arising thereafter to which the results are announced should be notified to the UPSC. In other words, firm requirement are required to be intimated to the UPSC well before the results are announced. " ( 10 ) AS regards quota of direct recruits and promottees, it was contended that as per 50:50 norm, besides vacancy of permanent nature, the vacancy is in the nature of temporary and short term which were likely to continue were also to be considered. ( 11 ) REFERRING to Rule 4 of UPSC Examination Rules, it was stated that a candidate on joining a Service cannot opt for any other service. The learned Tribunal having regard to the decision of the Apex Court in Bablani s case (supra) held that owing to lapse of time such relief should not be granted. ( 12 ) IT was also noticed that after the decision of Bablani, representations were received pertaining to recruitment years 1975 to 1990 but the same were not considered. Before the tribunal a contention was raised that in terms of the decision of the Apex Court in Bablani ( supra), the O. A. would not be maintainable if it was filed beyond ten years. However, according to them they came to know about the diversion of posts in 1998 and they having filed OA immediately after filing one representation, no case has been made out for refusing the relief particularly when in Bablani s case the Apex Court was apprised about diversion of vacancies upto 1996 but in the affidavit filed on 17. 7. 1990, it was admitted that such diversion continued from 1986 to 1996. It was submitted that the starting point for cause of action would be in the aforesaid situation the date of knowledge of such decision. In support whereof, reliance has been placed on Salonah Tea Co Ltd v. Supdt of Taxes Nowgong 1988 (1) SCC, 401 and Sita Ram Singh v. Ram Kishori Devi and another 1999 (9) SCC 112 . ( 13 ) IN any event, contention of learned counsel is that the question of limitation is irrelevant when delay is explained by justifying circumstances. Reliance was placed on M/s Dehri rohtas Light Railway Co Ltd v. District Board, Shahbad and others 1992 (9) SCC 598. ( 13 ) IN any event, contention of learned counsel is that the question of limitation is irrelevant when delay is explained by justifying circumstances. Reliance was placed on M/s Dehri rohtas Light Railway Co Ltd v. District Board, Shahbad and others 1992 (9) SCC 598. Violation of the quota rule, as prescribed in the statute, it was argued should not be marginalized particularly when such an action is not irreversible and in support thereof reliance was placed on Maharashtra Vikrikar Karamchari Sangathan v. State of maharashtra, 2001 (1) SCALE 105. ( 14 ) AS regards the question of estoppel, it was submitted that there cannot be an estoppel in a case where violation of the fundamental rights is involved. Reliance has been placed on basheshwar Nath v. Commissioner of Income-tax Delhi and Rajasthan, AIR 1. 959 SC 149 and Olga Tellis vs Bombay Municipal Corporation AIR 1986 SC 180 . ( 15 ) THE learned Administrative Tribunal did not go into the contentions raised by the parties and only considered the question of limitation holding: "mere filing of the representations by the applicants would not extend the period of limitation. The case law relied upon by the applicant s counsel in view of the specific judgment of the Apex Court in Bablani s case is distinguishable and will not apply to the facts and circumstances of the present case. Hence we are of the considered view that present OAs are hit by the law of limitation. ( 16 ) THE learned Tribunal also held that as in the event OAs are allowed, seniority already assigned to persons working in other posts would be disturbed. The settled position should not be unsettled and in any event they should have been impleaded as parties. Rebutting the contention that they have merely questioned wrongful action on the part of the State, it was held that the petitioners do not have any legal right to be appointed in the said Group-A posts. ( 17 ) MR. M. P. Verma, learned senior counsel would submit that the learned Tribunal in passing the impugned judgment not only ignored its own judgment in Raj Singh Naulakha but has also failed to take into consideration the provisions of Section 17 of the Limitation Act as also Order 1 rule 9 CPC. ( 17 ) MR. M. P. Verma, learned senior counsel would submit that the learned Tribunal in passing the impugned judgment not only ignored its own judgment in Raj Singh Naulakha but has also failed to take into consideration the provisions of Section 17 of the Limitation Act as also Order 1 rule 9 CPC. Learned counsel would contend that Bablani s case having been directed not to be treated as precedent, the learned Tribunal committed serious irregularity in relying on the observations made therein. ( 18 ) IT was submitted that when an action on the part of the Government is questioned on the ground of violation of Articles 14 and 16 of the Constitution of India, the parties who may be affected by reason of a decision would not be necessary parties. ( 19 ) THE case at hand depicts a sorry state of affairs prevailing in Excise and Customs department of Govt of India. In Bablani s case the Government in no uncertain terms accepted that it had committed a serious mistake in not advertising the correct position as regards existing vacancies since the year 1974. Only 40% of posts were notified in 1974 as against 75 vacancies. . However, in Bablani it was noticed that position was rectified from 1990. It was observed by the Apex Court1. 4. The appellants have conceded that as per the Recruitment Rules pertaining to this department, there is a quota of 50% for direct recruits and 50% for promotees. The vacancies which have to be considered for applying the quota of 50% for direct recruits, are not just permanent vacancies but also temporary vacancies of long term duration. However, by mistake, upto the year 1990, only permanent vacancies which were available to direct recruits on the basis of 50% quota were notified. The position has been rectified from the year 1990. The appellants also accept that had temporary vacancies of long duration been taken into account in 1974, 97 vacancies should have been notified. The Tribunal has, in this connection, rightly referred to a memorandum issued by the Central Board of Revenue dated 20. 4. 1953 in which the procedure for confirmation, promotion, reversion, retrenchment etc. in grade which are filled partly by direct recruits and partly by promotions, has been laid down. The Tribunal has, in this connection, rightly referred to a memorandum issued by the Central Board of Revenue dated 20. 4. 1953 in which the procedure for confirmation, promotion, reversion, retrenchment etc. in grade which are filled partly by direct recruits and partly by promotions, has been laid down. , this memorandum clearly mentions that in filling up the permanent vacancies arid long term vacancies and vacancies which though temporary in the first instance are likely to be long term or permanent vacancies, for example, posts sanctioned for specified periods likely to be renewed, the proportion fixed for direct recruits and promoted officers should be rigidly maintained. Temporary vacancies like leave vacancies may, however, be filled by promotion of departmental members irrespective of the quota fixed for them. The same position is maintained in office Memorandum dated 8-6-1967 issued by the ministry of Home Affairs which specifies, "all clear vacancies arising in a post/grade/service, due to death, retirement, resignation, promotion of incumbents from one post to higher post/grade, including deputation for a period exceeding 3 years, and vacancies arising from creation of temporary posts which are likely to be made permanent or continued on a long term basis should be filled according to the provisions of the recruitment rules and brought on to the recruitment roster". The appellants, therefore were required to notify not just permanent vacancies but also temporary vacancies of a long term duration and to determine the total number of vacancies available for direct recruits for their 50% quota, accordingly. " (emphasis supplied) ( 20 ) THIS case is clearly a pointer to the fact that such a representation on the part of the respondents before the Apex Court was incorrect. In the counter-affidavit affirmed by one R. Gopalnathan in the CCP313 of 1997arising out of CWP 306/88 referring to the representations. made by promotees as also direct recruits, it was stated : " E. As already submitted above, the steps necessary for review of all post 1979 ad hoc promotions have already been taken but the review DPC has not been convened by the UPSC. In the meanwhile fresh vacancies in the grade of Assistant Collectors arose and as a stop-gap arrangement. In the meanwhile fresh vacancies in the grade of Assistant Collectors arose and as a stop-gap arrangement. These vacancies were filled up by making further ad hoc promotions from feeder posts after apportionment of vacancies in the ratio of 6:1:2 amongst superintendents of Central Excise, Supdts of Customs (P) and Customs Appraisers as per the judgment dated 22. 11. 1996 and order dated 2. 7. /1997 was issued accordingly. F. Soon after the issue of the order dated 2. 7. 1997 representations from the two feeder posts namely Supdts and customs Appraiser were received with the grievance, inter alia that they had been deprived of their share in promotion quota vacancies as per the judgment of this Hon ble Court dated 22. 11. 1996 and that the Superintendents of Central Excise were promoted in excess of their proportion from 1980 onwards. These twos feeder grades officers demanded full share of vacancies in promotion quota to Group -A as per the Hon ble Supreme court judgment dated 22. 11. 1996 i. e. promotion after apportionment of vacancies in the ratio of 6:1:2 by working out their share from out of the promotions made from 1980 onwards. "the conditions of service indisputably is governed by the Indian Customs and Central excise Service Group A Rules, 1987. the said rules were made in terms of proviso appended to Article 309. The said Rules came into force from 17. 9. 1987. Rule 2 (k) defines " service" to mean the Indian Customs and Central Excise Service Group-A. Rule 3 provides for constitution of service in the following terms: "3[cj2]. Constitution of the Service- (1) The service shall consist of the following persons, namely:- (a) members of the Indian Customs service appointed to that service before the 15th august, 1959; (b) Members of the Central Excise Service appointed to the. . . (c) Persons who were appointed to the service after the 15th August, 1959 and before the commencement of these rules, and (d) Persons recruited to the service in accordance with the provisions of these rules. (2) The cadre of the service shall be controlled by the controlling Authority. "rule 5 provides for methods of recruitment to the service and percentage of vacancies to be filled in certain grades of the service in the following manner: "1) Recruitment to the service shall be made by the following methods, namely, a ). . . . (2) The cadre of the service shall be controlled by the controlling Authority. "rule 5 provides for methods of recruitment to the service and percentage of vacancies to be filled in certain grades of the service in the following manner: "1) Recruitment to the service shall be made by the following methods, namely, a ). . . . . . b) by promotion in accordance with the provisions of Part IV of these rules. (2) Vacancies in Grade VI of the service shall be filled in the following manner: (i) 50% of the vacancies shall be filled in accordance with the provisions in Part III of these rules, and (ii) 50% of the vacancies shall be filled in accordance with the provisions in part IV of these rules. (3) Notwithstanding the provisions contained in sub rules (1) and (2) above, government may recruit to any of the grades when so required from other sources for good and sufficient reasons to be determined in consultation with the Commission of persons having qualifications or experience in any specialty. Provided that when such recruitment is made to Grade VI of the Service the number of persons so recruited shall count against the percentage of vacancies to be filled by direct recruitment. "part III provides for examination. Rule 18 of Part VI, provides for appointment by promotion to grade VI of service as under: " (1) Appointment to the vacancies in Grade VI of the Service required to be filled by promotion under sub-rule 2 (ii) of rule 5 shall be by promotion of the following categories of Group "b" officers in the Central Excise, Customs and Narcotice departments who have completed three years regular service in the group B posts of- (a) Superintendents of Central Excise in the Central Excise Department and District opium Officer or Intelligence Officers or Superintendents ( Executive) in the narcotics department. (b) Appraisers of Customs in the Customs Department (c) Superintendents of Customs ( Preventive) in the Customs Deptt. 2 (a) the vacancies to be filled by promotion shall be filled in accordance with the common seniority list of the three Group B Categories of the officers mentioned in sub-rule (1) above. (b) Appraisers of Customs in the Customs Department (c) Superintendents of Customs ( Preventive) in the Customs Deptt. 2 (a) the vacancies to be filled by promotion shall be filled in accordance with the common seniority list of the three Group B Categories of the officers mentioned in sub-rule (1) above. (b) The seniority of the officers in Group B feeder categories of service for eligibility for promotion to Group A shall be determined on the basis of their regular length of service in their respective Group B categories, subject to the condition that the inter- se seniority in each feeder category of service shall be maintained. (3) (a) The promotions shall be made on the principle of selection on merit basis. (b) The commission shall be consulted for making promotion to grade VI. " ( 21 ) IT is not in dispute that before the Tribunal the respondent had not raised any contention on merits. ( 22 ) WAS it a case where the technical rules of delay and laches should be allowed to prevail over the merit of the matter. ( 23 ) WE have noticed that the Tribunal extensively quoted from Bablani s case alone. Bablani s case was decided in 1994. Therein there had been delay of 15-20 years. A question which arises is as to whether the respondents can be permitted to continue to act arbitrarily. The contention of the petitioner to the effect that they were not aware of the factual position so as to enable them to lay their claim has not been disbelieved. Question of delay and laches may arise only when a set of facts were known to the petitioner but he did not take any action for a long time although he is aware thereof. Question of slipping over the right for a long time will arise only when one knows about his right. A cause of action relating* to enforcement of right would arise only when factual background is known. ( 24 ) IN the instant case, the mistake was on the part of the respondent. One such mistake is accepted, it was also obligatory on the part of the employer to find out ways and means for ameliorating the Just grievances of the petitioners. As noticed above, the respondent themselves stated that the grievances of the petitioner are justified. ( 24 ) IN the instant case, the mistake was on the part of the respondent. One such mistake is accepted, it was also obligatory on the part of the employer to find out ways and means for ameliorating the Just grievances of the petitioners. As noticed above, the respondent themselves stated that the grievances of the petitioner are justified. ( 25 ) IN Kishorilal Bablani v. Union of India, (CAT: Bombay) 1994 (6) SLR 213 the question had been gone into in details. The merit of the decision of the Tribunal in Bablani s case has not been upset by the Apex Court. In its judgment the Tribunal weighed the entire gamut of the matter. It was held : "21. AS a result, this application succeeds partly inasmuch as the prayer made in sub para (c) is found to be acceptable. The respondents are hereby directed to consider the appointment of the applicant after adjusting the vacancies in a strict compliance of 50:50 quota system between direct recruits and promotees for the posts of Assistant Collector of Custom/ Central Excise existing when the results of the UPSC exams of 1974 were announced. If the vacancies are found to be large enough to cover the applicant he may be allotted the notional position and seniority along with other entrants who were appointed on/the basis of 1974 examination. However, this relief will not entitle the applicant to benefits of pay and allowances of the post of Assistant Collector against which he had not worked till his promotion to that grade. This order may be complied within 6 months of issue of this order. " ( 26 ) THE learned Tribunal had referred to the decision of Shankarsan Dash v. UOI, 1991 (3) SCC 47 but failed to noticed the following dicta: "7. . . UNLESS the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner"the State has thus a right not to fill up any vacancy but if vacancies are to be filled up the state is bound to follow the recruitment rules and for that purpose no discrimination in this behalf can be permitted. The Tribunal unfortunately did not consider this aspect of the matter. The Tribunal unfortunately did not consider this aspect of the matter. ( 27 ) YET again in Purushottam v. Chairman MSEB and another reported in 1999 (6) SCC 49 , the Apex court observed : 4. In view of the rival submission the question that arises for consideration is whether a duly-selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr Deshpande appearing for the appellant inasmuch as there is no dispute that the appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant s right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. We make it clear that appointment would be prospective in nature. " ( 28 ) A citizen may not have any constitutional right to be appointed. He has however, a fundamental right to be considered therefor. Such a right arises out of the underlying principles enshrined under Articles 14 and 16 of the Constitution of India. Consideration for appointment/promotion must be just, fair and equitable. Favouritism is antithesis of the rule of taw. Violation of the statutory rules in the matter of appointment may be held to be nullities -. Such a right arises out of the underlying principles enshrined under Articles 14 and 16 of the Constitution of India. Consideration for appointment/promotion must be just, fair and equitable. Favouritism is antithesis of the rule of taw. Violation of the statutory rules in the matter of appointment may be held to be nullities -. ( 29 ) WHILE considering a matter as to whether a person should be deprived of his constitutional and statutory right only on the ground of delay the same would depend upon the facts and circumstances of the case. It may be true as has been held by the Tribunal that only because a question of violation of fundamental right has been raised, delay and laches on the part of the petitioner may not take a back seat. ( 30 ) IN the instant case promotions were granted only on ad hoc basis. By reason thereof the petitioners did not draw any legal right to continue therein. We do not know whether such promotions were regularised or not and i,f so on what grounds. In Maharashtra Vikrikar karamchari Sangathan s case ( supra) it has been held : "26. Lastly, it was contended on behalf of the appellants that some of the appellants have put in more than 17 years of service when few of the direct recruits were either schooling and/or not born in the cadre. If the appellants were to be pushed down, it will cause a great hardship to them. We are unable to subscribe to this contention because if there is patent violation of the quota rule, the result must follow and the appellants who remained in the office for all these years cannot take the advantage of this situation. This submission is, therefore, devoid of any substance. "thus the statutory rules relating to quota must be followed. ( 31 ) AS regards duty we may notice that in Salonah Tea Co. ( supra) the Apex Court made a distinction as regard the question of refunding of the amount in terms of the provision of law and refund which is required to be made as a consequence of some order. It was held : "14. ( 31 ) AS regards duty we may notice that in Salonah Tea Co. ( supra) the Apex Court made a distinction as regard the question of refunding of the amount in terms of the provision of law and refund which is required to be made as a consequence of some order. It was held : "14. THE High Court in the instant case after analysing the various decisions came to the conclusion that where a petitioner approached the High Court with the sole prayer for claiming refund of money by writ of mandamus, the same was normally not granted but where the refund was prayed as a consequential relief the same was normally entertained if there was no obstruction or if there was no triable issue like that of limitation. We agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Article 226 of the constitution the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause any injury either to respondent or any third party. It is true that in some cases the period of three years is normally taken as a period beyond which the court should not grant relief but that is no? an inflexible rule. It depends upon the facts of each case. In this case, however, the high Court refused to grant the relief on the ground that when the section was declared ultra vires originally that was the time when refund should have been claimed. But it appears to us, it is only when the Loong Soong Case, AIR 1967 SC 1272 was decided by the High Court in 1973 that the appellant became aware of his crystal right of having the assessment declared ultra vires and in that view of the matter in October, 1973 when the judgment was delivered in July, 1973 the appellant came to know that there is mistake in paying the tax and the appellant was entitled to refund of the amount paid. That was the time when the appellant came to know of it. Within a month in November, 1973 the present petition was filed. That was the time when the appellant came to know of it. Within a month in November, 1973 the present petition was filed. There was no unexplained delay. There was no fact indicated to the High Court from which it could be inferred that the appellant had either abandoned his claims or the respondent had changed his position in such a way that granting relief of refund would cause either injury to the respondent or anybody else. On the other hand, refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice, equity and good conscience. We are, therefore of the view that the view of the High Court in this matter cannot be sustained. " ( 32 ) IN Sita Ram Singh v. Ram Kishori Devi and Another 1999 (9) SCC 112 , a three judges Bench, observed: "4. It appears from the record that First Appeal No. 166 of 1979 was heard by a learned Single Judge of the High Court and the judgment was reserved on 16. 4. 1993. The judgment was later on delivered on 19. 5. 1994. The date of pronouncement of the judgment was not notified in the cause list and at the time when it was announced, it appears that the learned Single Judge was not sitting at the Patna Bench of the High court but at the Ranchi Bench. Learned counsel for the appellant submits that the appellant had no knowledge, whatsoever, about the date of pronouncement of the judgment and that he learnt about it only on 24-4-1995 after which he applied for a certified copy of the judgment and filed the letters patent appeal. From a perusal of the record including the affidavits filed in this case, we are satisfied that the appellant did not acquire any knowledge about the pronouncement of-the judgment on 19-5- 1994 and that he came to know about it only on 24-4-1995. In this fact situation, the high Court ought to have condoned the delay and heard the letters patent appeal on merits. Dismissal of the LPA on the ground of delay in the facts and circumstances of this case was neither fair nor proper. " ( 33 ) IN Dehri Rohtas Light RIy. Co. In this fact situation, the high Court ought to have condoned the delay and heard the letters patent appeal on merits. Dismissal of the LPA on the ground of delay in the facts and circumstances of this case was neither fair nor proper. " ( 33 ) IN Dehri Rohtas Light RIy. Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598 , test was lard down as to when the court would refuse to entertain a petition on the following terms: "13. The 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. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. 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. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the high Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the high Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed. ( 34 ) IN Hindustan Petroleum Corporation Ltd Vs Dolly Dass 1999 (4) SCC 450 it was held : "8. So far as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account oflapse of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been raised before the High. Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by-reason of this delay in approaching the High Court for a relief. " ( 35 ) COUPLED with the question of delay question would also arise as to whether the respondent can take advantage of their own wrong. It certainly cannot. The respondent also being a statutory authority cannot exceed its jurisdiction. Such exercise of jurisdiction again must confine only to four comers of the statute and not beyond the same. The Apex Court in ramchandra v. Govind, AIR 1975 SC 915 stated : "25. A century ago in Taylor v. Taylor (1875) 1 Ch. D. 426 Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. The rule has stood the test of time. D. 426 Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. The rule has stood the test of time. It was applied by the Privy council in Nazir Ahmed v Emperor, 63 Ind App 372. . . . . . . " ( 36 ) LEARNED counsel for the petitioner have also relied upon various decisions but we need not refer to them in details. There are decisions and decisions. We at present as advised need not go into a large number Of the decisions. ( 37 ) THE position, however, is well settled with regard to the proposition that when in the facts and circumstances of the case the court or the Tribunal would entertain an application despite delay and laches on the part of the applicant would essentially depend upon the fact situation obtaining in each case. In a given case even a few months delay may be held to be fatal, while in another number of years delay may not be. While considering the question of delay illegality committed by the respondent, nature and extent of rights of the third parties which may be affected thereby may be relevant. ( 38 ) IN the instant case it appears that in CWP 5530/01- Seema Chaudhry v. UOI, the examination was held in 1991, results were published in 1992, the petitioner was allotted group-B in 1993. In a situation of this kind, there is no delay, and thus it must be held that the tribunal without proper application of its mind denied the relief. ( 39 ) SO far as the question of dismissal of the writ petition on the ground of misjoinder of parties is concerned, suffice it to point out that the same would not always be fatal. ( 40 ) IN A. Janardan v. Union of India, 1983 (3) SCC 601 , it has been held : "36. It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellant. In the writ petition filed in the High Court, there were in all 418 respondent*. It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellant. In the writ petition filed in the High Court, there were in all 418 respondent*. Amongst them, first two were Union of India and Engineer-in- chief, Army Headquarters, and the rest presumably must. be those shown senior to the appellant. By an order made by the High Court, the names of Respondents 3 to 418 were deleted since notices could not be served on them on account of the difficulty in ascertaining their present addresses on their transfers subsequent to the filing of these petitions. However, it clearly appears that some direct recruits led by mr Chitkara appeared through counsel Shri Murlidhar Rao and had made the submissions on behalf of the direct recruits. Further an application was made to this court by nine direct recruits led by Shri T. Sudhakar for being impleaded as parties, which application was granted and Mr P. R. Mridul, learned senior counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on this short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list arc invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to G. M. , South Central Railway, Secundrabad v. A. V. R. Siddhanti7. Thus the relief is claimed against the Union government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to G. M. , South Central Railway, Secundrabad v. A. V. R. Siddhanti7. Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this court observed that [scc para 15, p. 341: SCC (Lands) p. 296] the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought, and in whose absenceno effective decision can be rendered by the court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived. " ( 41 ) THE Tribunal also did not consider the question of analogous Order 1 rule 9 CPC situation where grave injustice has been done. The petitioners have categorically stated that they received the appointment letter in 1993. Some persons were appointed contrary to rules in 1991. Inter se seniority would depend upon the merit list. Thus even if a person is appointed having regard to the merit list, seniority will have no effect. Union of India was a party and as such the personal department was not a necessary party. Even if some parties were required to be added, the principles analogous to Order 1 rule 10 CPC would have been taken recourse to. ( 42 ) HAVING regard to the facts and circumstances of the case, we are of the opinion that the matter requires fresh consideration at the hands of the learned Tribunal. Even if some parties were required to be added, the principles analogous to Order 1 rule 10 CPC would have been taken recourse to. ( 42 ) HAVING regard to the facts and circumstances of the case, we are of the opinion that the matter requires fresh consideration at the hands of the learned Tribunal. ( 43 ) FOR the aforementioned reasons the impugned judgment cannot be sustained which is accordingly set aside and the matter is remitted to the Tribunal for fresh consideration. In the facts and circumstances of the case, there shall be no order as to costs. ( 44 ) BEFORE parting with this case, we however, would observe that we have not considered the merit of the matter. Merit of the matter has to be considered by the Tribunal having regard to the decision of the Apex Court in L Chandra Kumar v. UOI 1997 SC 1125. We have refrained from entering into the merits of the matter as the same should receive consideration at the first instance by the Tribunal although we have been called upon to enter into the merits of the matter not only having regard to L. Chander Kumar s case but also State of West Bengal v. Nooruddin Malik 1998 (8) SCC 143 , we did not think it fit to do so. In the latter decision the Apex Court held : quote paras 28 and 30. "28. It is not in dispute in this case that after the management sent its letter dated 6- 8-1992 for the approval of its 31 staff, viz. , both teaching and non-teaching staff, both the District Inspector of Schools and the Secretary of the Board sought for certain information through their letters dated 21-9-1992. Instead of sending any reply, the management filed the writ petition in the High Court, leading to passing of the impugned orders. Thus, till this date the appellant-authorities have not yet exercised their discretion. Submission for the respondents was that this Court itself should examine and decide the question in issue based on the material on record to set at rest the long-standing issue. We have no hesitation to decline such a suggestion. The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. We have no hesitation to decline such a suggestion. The courts can either direct the statutory authorities, where it is not exercising its discretion, by mandamus to exercise its discretion, or when exercised, to see whether it has been validly exercised. It would be inappropriate for the Court to substitute itself for the statutory authorities to decide the matter. 30. On a perusal of the impugned order, we do not find that any consideration was given in the impugned orders on the issue in question. This apart, the High Court disposed of the main appeal on the date not fixed for the same, while disposing of the application. It seems that in the background of the anxiety of the management, in view of the various proceedings undertaken including contempt proceedings for implementing the learned Single Judge s order, the Court, instead of adverting to the question in issue, concentrated more to see the said 31 persons be approved within the specified time. As we have held above, without the statutory authority applying its mind for their approval and the impugned order not adjudicating the issue in question how could the impugned orders be sustained. The remote suggestion by the learned counsel for the respondents of mala fide also cannot stand as we do not find, firstly, any such allegation on record nor has any such person by name been impleaded as a party. "