JUDGMENT Arun Kumar Goel, J. This writ petition is directed against the judgment dated 30.11.2000, passed by H.P. Administrative Tribunal, Shimla in Original Application No. 137 of 1988. Original Application of the present petitioners has been dismissed. Original Application was filed seeking the following reliefs : "(1) That the tentative seniority list dated 24.9.1985 Annexure P-1 and P-2 be set aside and the respondent No. 4 be directed to recast the same under rule 18 of the Himachal Pradesh Police Rules of 1973. (2) That seniority list dated 24.9.1985 as on 1.1.1985 circulated vide Annexure P-3 and P-4 is wrong and illegal has been prepared as a result of wrong application of reservation rules referred to above. The same deserve to be quashed and respondent No. 4 deserve to be quashed and respondent No. 4 deserves to be directed to recast the same under rules 18 of the Himachal Pradesh Police Rules 1973. (3) That the final seniority list dated 8.2.1988 circulated vide Annexure P-6 and P-7 deserves to be set aside being wrong and illegal thereby assigning seniority to respondents 1 to 3 over and above applicants by wrong application of servation rules referred to above prior to 17.10.1981. The said seniority list viz. Annexure P-6 and P-7 deserve to be quashed and respondent No. 4 deserves to be directed to recast the seniority list of the applicants, respondents 1 to 3 proforma respondents and other officers of the cadre without application of reservation rules 1972 and 1974 referred to above and considering the respondents 1 to 3 belonging t general category and taking into account the date of appointment and merit prepared by the Himachal Pradesh Public Service Commission prepared at the time of selection of the officer concerned. (4) That the Demobilized Armed Forces Personnel (Reservation of Vacancies in the H.P. State non technical services) Rules, 1972 as well as the demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the H.P. Administrative Service) Rules 1974 be declared ultra vires of the Constitution and the same be struck down." While dismissing the Original Application, Tribunal declined any of the above reliefs claimed by the petitioners. 2. 2. Having felt aggrieved by and dissatisfied with the judgment of the Tribunal, this writ petition has been filed claiming the following reliefs : (i) Quashing judgment and order of the H.P. Administrative Tribunal passed in O.A. No. 137 of 1988 on November 30, 2000 (Annexure P-1) as being illegal arbitrary, unconstitutional and void. (ii) Quashing tentative seniority lists dated 24.9.1985 (Annexure P-1 and P-2 with the Original application) and final seniority list dated 8.2.1988 (Annexure P-6 and P-7 with the original application). (iii) Directing the respondent No. 4 to grant seniority to the petitioners in accordance with Rule 18 of the H.P. Police Service Rules. (iv) Directing the respondent No. 4 to give all consequential benefits to the petitioners including consideration for promotion to the further posts. (v) That respondent No. 4 may be directed to produce entire record pertaining to the case before this Hon'ble Court. (vi) Any other writ, order or direction deemed just and proper by this Hon'ble Court in the light of facts and circumstances of the case mentioned hereinabove may also be passed in favour of the petitioners. (vii) The respondents may be burdened with the cost of this position throughout." 3. Petitioners are aggrieved primarily from the action of respondent No. 4 extending benefit of the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non Technical Services) Rules, 1972 (hereafter referred to as "1972 Rules"), as well as the extension of the Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the H.P. Administrative Service) Rules, 1974 (hereafter referred to as "1974 Rules") to the H.P. Police Service, (hereafter referred to as "the Service"). 4. Petitioners as well as respondents 1 to 3 were recruited alongwith other persons to the Service on different dates. Their dates of recruitment under the H.P. Police Service Rules, 1973 (hereafter referred to as "1973 Rules") are as under : Sr. No. Name Date of joining 1. Sh. O.C. Thakur 1.11.1977 Petitioner No.1 2. Sh. R.L. Sood 10.1.1979 Petitioner No. 2 3. Sh. Pradeep Kumar 31.1.1979 Petitioner No.3 4. Sh. A.N. Sharma 16.8.1979 Petitioner No. 4 5. Sh. K.S. Rana 1.11.1977 Respondent No. 1 6. Sh. J.K. Monga 6.5.1980 Respondent No. 2 7. Sh. K.C. Sadyal 19.10.1984 Respondent No. 3 5. No. Name Date of joining 1. Sh. O.C. Thakur 1.11.1977 Petitioner No.1 2. Sh. R.L. Sood 10.1.1979 Petitioner No. 2 3. Sh. Pradeep Kumar 31.1.1979 Petitioner No.3 4. Sh. A.N. Sharma 16.8.1979 Petitioner No. 4 5. Sh. K.S. Rana 1.11.1977 Respondent No. 1 6. Sh. J.K. Monga 6.5.1980 Respondent No. 2 7. Sh. K.C. Sadyal 19.10.1984 Respondent No. 3 5. Respondents 1 and 2 were given benefit of their Military Service under the 1972 Rules, whereas respondent No.3 was given the benefit of the Rules of 1974. Respondent No.1 was assigned the deemed year as 1966, respondent No.2 was given the assumed date as 18.4.1975, whereas in case of respondent No. 3, he was given assumed date of 19.8.1977. 6. Case of the petitioners before the Tribunal was that tentative seniority list Annexure P-2 circulated vide Annexure P-1 assigning higher places to respondents 1 and 2, and in the other tentative seniority list Annexure P-4 circulated vide Annexure P-3 in case of respondents 1 to 3 is not sustainable. Similarly rejection of their representations against Annexures P-2 and P-4 and issuance of Annexure P-7, the final seniority list circulated vide Annexure P-6 deserves to be set aside. As according to them both i.e. 1972 and 1974 Rules, firstly were unconstitutional and ultra vires and in any case had no applicability so far as the Service is concerned till 17.10.1981, when for the first time Rules of 1974 were made applicable to the Members of the Service after consultation with H.P. Public Service Commission, with immediate effect. 7. For ready reference, this notification is extracted hereinbelow : "No. Karmik (A-1)-A (3)-3/80 Dated 17.10.1981 Notification In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and all other powers enabling him in this behalf, the Governor, Himachal Pradesh, is pleased to extend and make applicable the provisions of the rules known as the Demobilized Indian Armed Forces Personnel (Reservation of vacancies in the Himachal Pradesh Administrative Service) Rules 1974, notified vide No. 8-158/73DP(Appt.) dated the 16th August, 1974, as amended from time to time to the members of Himachal Pradesh Police Service also with immediate effect." (Emphasis supplied). 8. Rules 1 and 2 of 1972 Rules, for ready reference are also extracted hereinbelow : "1. 8. Rules 1 and 2 of 1972 Rules, for ready reference are also extracted hereinbelow : "1. Short title, commencement and application :- (1) These rules may be called the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972. (2) These rules shall come into force with effect from 28.3.1972. (3) These rules shall apply to all non-technical posts in the Himachal Pradesh State Services, except posts in the Himachal Pradesh Civil Services (Executive and Judicial Branches). (Emphasis supplied) 2. Definitions - "Non Technical Posts" means all posts under the Government, other than the posts in the Medical and Engineering services." 9. So far as Rules of 1974 are concerned, as already noted those were made applicable to the service vide Notification dated 17.10.1981, (supra) for the first time. 10. Case of the petitioners in the present writ petition is that so far as petitioner No.1 and respondent No.1 are concerned, they joined the Service under 1973 Rules on the same date. Petitioner No.1 claims that he was placed higher in merit by the Commission, but was wrongly placed below respondent No. 1. Whereas petitioners 2 to 4 were appointed earlier in point of time to respondents 2 and 3. By extending benefit of 1972 and 1974 Rules, respondents 1 to 3 have been shown senior, to all the petitioners. Since these Rules were inapplicable in case of respondents 1 to 3, therefore, the action of respondent No. 4 in showing them senior to the petitioners is liable to be struck down. According to them, Tribunal fell into grave error while dismissing their Original Application and upholding the Seniority List Annexure P-2, P-4 circulated vide Annexures P-1, P-3 respectively and P-7 the final seniority list circulated vide Annexure P-6. 11. In the aforesaid background, learned counsel for the petitioners, by referring to the stand of the State Government, urged that respondents 1 to 3 have been wrongly assigned seniority in the Service over the petitioners by virtue of their Military Service as noted above. 12. Rules of 1972 were applicable to all non technical posts in H.P. State Services, except Executive and Judicial branches. Another fact on which parties were not at variance is that for H.P. Administrative Service, 1974 Rules were framed. Similarly for H.P. Judicial Service, similar Rules of 1981 are in force. 12. Rules of 1972 were applicable to all non technical posts in H.P. State Services, except Executive and Judicial branches. Another fact on which parties were not at variance is that for H.P. Administrative Service, 1974 Rules were framed. Similarly for H.P. Judicial Service, similar Rules of 1981 are in force. Prior to these, in 1975 Rules were framed and were in force for five years so far H.P. Judicial Service is concerned. Further Rule 2 of 1972 Rules defines non-technical post to mean a post under the State Government, other than the post in Medical and Engineering Service, whereas its Rule 1 (3) excludes the applicability of those to Civil-Services, Executive and Judicial Branches. 13. As such, the core question that needs consideration is whether 1972 Rules authorised respondent No. 4 to apply those in case of the Service to which recruitment was made by the State of H.P. for the first time under 1973 Rules. And also keeping in view the facts by no order/notification these are shown to have been applied to the Service. A reference to these Rules and on their plain reading clearly excludes their applicability to the service under 1973 Rules governing it. Unless these 1972 Rules were specifically made applicable, as was done in case of 1974 Rules in the year 1981, how these Rules would apply and on what basis, has remained unexplained by respondent No. 4. 14. In this background, on behalf of respondents 1 to 3 it was urged by referring to the decisions of this Court in George v. A.C. Thalwal and others 1993 (2) RSJ 223, and in LPA No. 18/1991, S.R.Thakur v. State of H.P., decided on 9.8.1985; and of Central Administrative Tribunal, Chandigarh Bench, Chandigarh in OA No. T519/1985, decided on 5.3.1987 titled as Durga Shankar Amisht v. Union of India and others, that 1972 Rules are applicable to the Service so this writ merits dismissal. 15. In our view none of these decisions in any manner binds the petitioners, nor can they be pressed into service on behalf of respondents 1 to 3 so as to prohibit them from arguing that Rules of 1972 were not applicable, benefit whereof has been extended in case of respondents 1 and 2. 16. 15. In our view none of these decisions in any manner binds the petitioners, nor can they be pressed into service on behalf of respondents 1 to 3 so as to prohibit them from arguing that Rules of 1972 were not applicable, benefit whereof has been extended in case of respondents 1 and 2. 16. Similarly, submission urged on their behalf by learned Senior counsel based on the decision of the Supreme Court in S.B. Dogra v. State of H.P. and others, JT 1992 (5) SC 667, also does not bar the petitioners from urging that the Rules of 1972 were not applicable. Though it was forcefully urged on their behalf, that the benefit of these Rules has been rightly extended to respondents 1 and 2 and disturbing the settled seniority position after such a long gap is impermissible in law, as it would result in unsettling the settled position in respect of officers belonging to the Service. 17. A reading of S.B. Dogra's case, (supra) shows that in this particular case, no objection has been filed against the Provisional Gradation List within the time prescribed which was only submitted after the Final Gradation List had been published. This is another reason to hold that decision in S.B. Dogra's case cannot be taken as a precedent in this case. 18. Paragraph 10 from this judgment dealing with this aspect of the case is extracted hereinbelow : "(10) On the other hand Rule 5 (1) of the 1972 Rules states that the seniority of candidates appointed against the vacancies reserved under Rule 3 shall be determined on the assumption 'that they joined service and the post under the State Government 'at the first opportunity' they had 'after' they joined military service or training prior to commission. The language of this rule is, therefore, altogether different from the language of the Haryana rules on which A.S. Parmar's case was decided. Now on the construction of this Rule 5 (1), the seniority assigned to Dogra was three places above Amist in the tentative seniority list circulated in March 1977 which came to be finalised in February 1979. No objection was raised by Amist regarding the placement given to Dorga in the seniority list. Some other junior officers had challenged it in the High Court but without success. No objection was raised by Amist regarding the placement given to Dorga in the seniority list. Some other junior officers had challenged it in the High Court but without success. Amist challenged it for the first time in 1983 after his name was dropped from the Select List of disposed of before the central Administrative Tribunals Act, 1985, came into force, it would perhaps have met the same fate of dismissal as Writ Petition No. 280 of 1978 and L.R.A. No. 18 of 1981. But that apart, the tribunal ought not to have disturbed the seniority after such a long lapse of time when Amist had not challenged it before the same was finalised in February 1979. Amist should have challenged Dogra's placement in the seniority list which was circulated in March 1977 inviting objections before it was finalized. If he had no objection then it is obvious that he challenged it in 1983 only because his name was dropped from the Select List of 1982. In the circumstances, the Tribunal should have been slow in interfering with the seniority which was holding the field for the last several years. That is the view expressed by this Court in State of Madhya Pradesh and another v. Rameshwar Prasad and others, 1976 (2) SCC 37 . In that case the seniority was fixed according to the length of service in regard to the classified officers and the grades held by those officers. No objection was filed by the respondent to the provisional gradation list so prepared. He filed an objection only after the final gradation list was published. Contending that the services rendered by the Madhya Bharat and Vindhya Pradesh officers prior to the coming into force of the Sales Tax Acts in the respective States should not have been counted for the purpose of determining the seniority of the respondent. The High Court allowed the belated representation and hence the matter was brought before this Court in appeal. This Court held that after the reorganisation of the States it was obligatory to prepare a common gradation list of the officers of the various departments so that the officers who were allocated to the new State did not suffer any prejudice. The High Court allowed the belated representation and hence the matter was brought before this Court in appeal. This Court held that after the reorganisation of the States it was obligatory to prepare a common gradation list of the officers of the various departments so that the officers who were allocated to the new State did not suffer any prejudice. For that a tentative or provisional gradation list was directed to be prepared with a view to giving an opportunity to the officers whose seniority was determined in the list to make their representations in order to satisfy the Government regarding any mistake or error that may have crept in. If the employee concerned did not file his representation within the period prescribed after the date of the publication of the provisional gradation. list, then his representation should have been rejected outright. It is erroneous to contend that the employee concerned should have waited for filing his representation or objection until the final gradation list was published. Therefore, the representation filed by the respondent long after the expiry of the time mentioned in the Gazette publishing the provisional gradation list was rejected as belated. The observations made in this judgment apply with all force to the fact situation in the case before us." 19. In addition to the above, petitioners were admittedly not party either to writ petition being CWP 280 of 1978 filed by Sukh Ram, out of which LPA No. 18 of 1981 had arisen, or before the Central Administrative Tribunal, Chandigarh Bench, in the case of Durga Shankar Amisht v. Union of India and others (supra). Therefore, such findings do not operate as res judicata against them. None of these case was filed in a representative capacity. 20. Hon'ble Supreme Court dealt with such a situation in A.C. Thakwal v. High Court of H.P. and others, 2000 (7) SCC 1 , against the judgment of this Court in CWP Nos. 1184/1993 and 168 of 1994, decided on 17.11.1994. None of these case was filed in a representative capacity. 20. Hon'ble Supreme Court dealt with such a situation in A.C. Thakwal v. High Court of H.P. and others, 2000 (7) SCC 1 , against the judgment of this Court in CWP Nos. 1184/1993 and 168 of 1994, decided on 17.11.1994. While dealing with the plea of res judicata, it was held that subsequent writ petitions filed by persons who were not parties in the earlier writ petition, and seniority of a Judicial Officer having been stepped up against the quota reserved for ex-servicemen and the Rules enabling such stepping up having been challenged by one of the superseded judicial officers without impleading the others as party, Court holding on the assumption that Full Bench of High Court had already upheld the constitutionality of the impugned Rule, the Division Bench held the said Rules to be valid and upholding the stepping up of the seniority of the judicial officer in question, and subsequently on the representation of said judicial officer in question, and subsequently on the representation of said judicial officer, his seniority was further stepped up. And when other superseded judicial officers filed writ petitions challenging both the orders of stepping up, writ petitions were allowed by this Court. In appeal, Supreme Court held that the decision in the former writ petition was not binding on the writ petitioners in the later writ petitions. And the plea of res judicata was negatived by the Supreme Court. Therefore, plea based on the earlier decisions of this Court in LPA 18 of 1988 and of Central Administrative Tribunal, Chandigarh Bench, Chandigarh in the case of Durga Shankar Amisht v. Union of India and others (supra), as well as on the decision of S.B. Dogra's (supra), has no merit and is accordingly rejected. 21. Now unless it was shown that Rules of 1972 were applicable, to the Service which was constituted under the 1973 Rules, in our considered view no benefit can be extended either under 1972 or 1974 Rules to any officers including respondents 1 to 3 who joined the Service under 1973 Rules, of their Military Service. Learned Advocate General laid great emphasis on the stand of the State Government by referring to para 3 of the reply. Learned Advocate General laid great emphasis on the stand of the State Government by referring to para 3 of the reply. It is reproduced hereinbelow : "Para 3 Admitted to the extent that the dates of joining of HPPS by both the petitioners as also by the respondents No. 1 to 3 are correct. The respondents No. 1 to 3 have been assigned seniority in the Himachal Pradesh Police service over the petitioners by virtue of benefits of Military Service the respondent acquired under Demobilized Armed Forces Personnel (Reservation of Vacancies in HP Non-Technical Services) Rules, 1972 in case of respondents No. 1 to 2 whereas respondent No. 3 under Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh Administrative Services) Rules, 1974 extended and made applicable of HPPS w.e.f. 17.10.1981. These Rules of 1974 were extended and made applicable to HPPS to bring the uniformity of the provisions of the rules in Himachal Pradesh Administrative Service and Himachal Police Service being sister services. The seniority was finalised vide Office Memorandum dated 8.2.1988 as has been annexed by the petitioners vide Annexure P-6 and P-7 to the O.A." 22. There is nothing pleaded by respondent No. 4 and nothing was brought to our notice on behalf of this respondent at the time of hearing as to by which Government notification/order 1972 Rules were made applicable to the Service. 23. Another submission of learned Senior Counsel for the respondents 1 to 3 with reference to Section 40 of the State of Himachal Pradesh Act, 1970 needs to be noted. Per him, on and from the appointed day, there had to be constituted for the State of H.P. (a) the H.P. Administrative Service; and (b) the Police Service. At the time of hearing, it was not disputed that Delhi, Himachal, Andaman and Nocibar Police Services DHANICS; and Delhi, Himachal, Andaman and Nicobar Civil Service DHANICS, were the two Services then existing. From both these services; officers were to be allocated to the cadres of these two Services to the State of H.P. and subject to the provisions of Section 40 (1), (2) (5), Rules and Regulations applicable to, or in relation to the Members of the existing civil and Police Services as in force immediately before the appointed day, were to apply respectively to both these Services until altered, repeated or amended by the competent authority. It is a matter of common knowledge that officers of these Services were in fact allocated to the State of Himachal Pradesh under State of. Himachal Pradesh Act, 1970. 24. Whether there was any rule like either 1972 or 1974 Rules governing the officers belonging to the Police and Civil Services on the appointed day when State of H.P. Act came into force, there is no material on record produced by any of the respondents in this case. In this context, submission urged on behalf. of respondents 1 to 3 that in any event Rules of 1972 would cover their case, in our considered view, is neither supported from record, nor was anything brought to our notice at the time of hearing wherefrom it could be inferred that there were any Rules governing the Service as it existed on the appointed day when 1970 Act (supra), came into force. As such, no advantage an be taken by respondents 1 to 3 from Section 40 of the State of H.P. Act, 1970. 25. No doubt, this Section recognizes two Services., i.e. Civil and Police, in the State of H.P. from the appointed day. However, this is not the controversy involved in this writ petition. And as already observed, core question is whether to officers of the Services, 1972 Rules would apply or not ? In this behalf, it may also be appropriate to notice that these Rules are applicable to all non-technical posts in the Service of the State except the H.P. Civil Services, Executive and Judicial Branches. In our opinion, Police Service under 1973 Rules is a part of executive branch of State Civil Services. 26. In this behalf, a reference to Rule 20 of 1973 Rules as it existed prior to 11.11.1974, and its Appendix 'B' as it stood before its deletion, clearly suggests that in the matter relating to discipline, penalities and appeals, members of the service were to be governed by the H.P. Services (Punishment and Appeal) Rules. Appendix 'B' prescribed the authority who could impose penalty and who was the appellate authority. Paras 6 and 7 of Appendix B are as under : "APPENDIX 'B' (See Rule 20) Sr. No. Nature of penalty Authority Empowered to impose penalty Appellate Authority 1 2 3 4 1 to 5 xxx xxxx xxxx 6. Removal from the Civil State Government which does not disqualified from future employment. 7. Paras 6 and 7 of Appendix B are as under : "APPENDIX 'B' (See Rule 20) Sr. No. Nature of penalty Authority Empowered to impose penalty Appellate Authority 1 2 3 4 1 to 5 xxx xxxx xxxx 6. Removal from the Civil State Government which does not disqualified from future employment. 7. Dismissal from the civil service of the Government which ordinarily disqualified from future employment." do ______ 27. This also supports our view that the Service under the Rules of 1973 is a Civil Service for the purpose of inflicting punishment, consequently submission to the contrary urged on behalf of respondents No. 1 to 3 that the Rules of 1972 are applicable to all Services, except Medical and Engineering Services, including the service under 1973 Rules, cannot be accepted. 28. Regarding the plea that the petitioners are not entitled to any relief whatsoever because of delay and their having not challenged the orders dated 12.10.1981 and 22.1.1982 showing respondent No. 1 to be senior disentitles them from either maintaining this writ petition and/or claiming any relief therein. Suffice it to say in this behalf that so far as petitioner No. 1 is concerned, he ought to have and in fact should have challenged the placement of respondent No. 1 above him if what was urged on his behalf was the factual position. There is nothing on record placed by him to suggest that he ever objected to it. Therefore, inter se placement of petitioner No.1 and respondent No. 1 cannot be changed at this belated stage. Only to this limited extent claim of petitioner No. 1 is negatived so far petitioners 2 to 4 are concerned, they admittedly joined the Service after respondent No. 1. As such they cannot claim to be placed above this respondent. 29. However, petitioners 2 to 4 had admittedly joined the Service much prior to the joining by respondents 2 and 3. Rules of 1972 having been held, to be not applicable to the officers who were borne in the two Services under Section 40 of the State of H. P. Act, 1970, mere, non-objection on the part of the petitioner No. 1 will not dis-entitle him, and to earn petitioners to challenge the benefit of military services of 1972 and 1974 Rules, having been wrongly extended to 9h the three respondents, because such an action had no legal sanction behind it. And for the first time, 1974 Rules as amended from time to time, when these were made applicable on 17.10.1981 to the Service with immediate effect. As such, it is held that no benefit of the 1974 Rules could be extended to any of respondents before this date. 30. Record of this writ petition shows that tentative seniority list of the Members of the Service was circulated vide Annexure P-1, dated 24.3.1985, as it was on 1.1.1981. This was based on the Division Bench decision of this Court dated 9.5.1981 in LPA Nos. 18, 20 and 21 of 1981, arising out of the decision of this Court in CWP No. 280 of 1978 Sukh Ram v. State of H.P. and others. On the same day, another tentative seniority list of such officers as it stood on 1.1.1988 was also circulated by respondent No. 4 calling for objections. Both these lists were objected to. 31. Final Seniority List Annexure P-7 was circulated by respondent No. 4 as it stood on 1.1.1988 vide letter dated 8.2.1988 Annexure P-6. Respondents No. 1 to 3 are shown at Sr. Nos. 6, 7 and 18 respectively in it. Whereas petitioner Nos. 1 to 4 are shown at S. Nos. 20, 21, 22 and 23 respectively. 32. Learned counsel for respondents No. 1 to 3 with a view to advance the case of his clients referred to Rules framed in the States of Punjab and Haryana and urged that no exception can be taken to the decision of the Tribunal impugned in this writ petition. For the view that we have taken holding that both 1972 and 1974 Rules were not at all applicable till 17.10.1981, this submission is hereby rejected. 33. We may clarify that in a given case, delay is a good ground to turn down the claim of a litigant. But this plea cannot be allowed to be pressed into service by respondents in this case. Reason being that till the 1974 Rules applied to them in 1981, and 1972 Rules being not at all applicable, extension of benefit of their military service in favour of the respondents 1 to 3 was not only illegal and arbitrary, but was ultra vires and void ab initio as well. Reason being that till the 1974 Rules applied to them in 1981, and 1972 Rules being not at all applicable, extension of benefit of their military service in favour of the respondents 1 to 3 was not only illegal and arbitrary, but was ultra vires and void ab initio as well. As such the grant of deemed/assumed dates to them prior to their respective dates of actual joining the Services and resultant promotions are liable to be struck down. Ordered accordingly. In this behalf, it is however clarified that from the dates of their respectively joining, petitioners, respondents 1 to 3 as well as proforma respondents will be entitled to their placement in the Seniority List, alongwith consequential and further promotions if any as may be permissible under the 1973 Rules on the dates when they became eligible for consideration of being promoted. 34. After having held that Rules of 1972 being in applicable in case of Officers who were recruited under 1973 Rules, why 1974 Rules also will not apply in case of respondents 1 to 3 will be dealt with hereinafter. 35. Government of Himachal Pradesh, Department of Personnel communication with the Himachal Pradesh Public Service Commission. On 16th October, 1981 following communication was addressed by this department to the Secretary, Himachal Pradesh Public Service Commission :- "No. Karmik (A-1)-A (3)-7/8 Government of Himachal Pradesh Department of Personnel (A-1). To, The Secretary, HP Public Service Commission, Shimla-171 002. Dated : Shimla-2, the 16th August, 1981. Subject :- Adoption of Demobilized Indian Armed Forced Personnel (Reservation of Vacancies in the Himachal Pradesh Administrative Services) Rules, 1974, as amended from time to time for future appointments to be made in HPS against reserved vacancies for Ex-servicemen. Sir, I am directed to refer to the following lines in para 3 of the proceedings of the meeting held under the Chairmanship of the Chief Secretary in his room on 2nd July, 1981 a copy of which was forwarded to you vide Endst. No. 7-5/70-DP (Apptt,-II), dated the 14th July, 1981 : "However, it was felt that for the future HPAS Rules be adopted for HPPS as well." and to say that seniority was assigned to one Sh. No. 7-5/70-DP (Apptt,-II), dated the 14th July, 1981 : "However, it was felt that for the future HPAS Rules be adopted for HPPS as well." and to say that seniority was assigned to one Sh. S.B. Dogra is HPPS (who was appointed to HPS on the recommendation of the commission, against the reserved vacancy for a demobilized person from Army, in the year 1975) in accordance with the concurrence of the Commission as contained in their letter No. 3-3/74-PSC, dated the 12.2.1976 under Rule 5 (1) of Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State. Non-Technical Services) Rules, 1972. These rules were not identical to those framed fro HAS known as the Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in HP Administrative Services) Rules, 1974, and the result was that the ex-servicemen appointed against the reserved vacancies in the three sister Services viz., HAS, HPS and HJS were not getting towards seniority etc. Besides it was held by the State Law Department that in view of the provision in Rule 1 (3) relating to application, the Demobilized Armed Forces Personnel (Reservation, of Vacancies in the Himachal Pradesh State Non-Technical Services) Rules, 1972 shall not be applicable to Himachal Pradesh Police Services as they also form a civil service of Executive Branch. The provision reads as under : "These Rules shall apply to all Non-Technical Posts in the Himachal Pradesh State Services, except posts in the Himachal Pradesh Civil Services (Executive and Judicial Branches)." with the above clarification given by the Law Department it is clear that there are no rules against the vacancies reserved for demobilized persons or ex-servicemen. It will also not be possible to withdraw benefits of seniority already given by his department to Sh. Shashi Bhushan Dogra or others who have so far been appointed to HPS against such vacancies on the recommendations of the Commission. In view of all this, it has been decided to adopt the rules known as the Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in HPAS) Rules, 1974 (as amended from time to time) also for Himachal Pradesh Police Service for future appointments in the said service. In view of all this, it has been decided to adopt the rules known as the Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in HPAS) Rules, 1974 (as amended from time to time) also for Himachal Pradesh Police Service for future appointments in the said service. I am accordingly to request that concurrence of the Himachal Pradesh Public Service Commission for the adoption of the same may kindly be obtained and conveyed to this department so that the draft notification as enclosed could be issued as early as possible." 36. It is clear from the communication that after the Public Service Commission had concurred, 1974 Rules, as amended from time to time were made applicable to the Service with immediate effect vide notification dated 17th October, 1981 extracted (supra). 37. Submission urged on behalf of the petitioners that Rules 1972 were firstly applicable, stand already negatived. Therefore unless it was shown that 1974 Rules had been applied to the appointees like respondents, when they joined the Services, benefit of their past military service rendered by them could not and in fact should not have been extended to them by respondent No. 4. Consequently their higher placement by extending the benefit of military service rendered by them had no legal sanction. As such, both the tentative seniority lists Annexures P-2 and P-4 and final seniority list Annexure P-7 need to be quashed and set aside. 38. Learned Advocate General as well as learned Senior Counsel for respondents No. 1 to 3 also submitted, that it will not be proper to upset the placement of respondents No. 1 to 3 vis-a-vis the petitioners. This plea cannot be accepted for the simple reasons because placement of the respondents by extending the benefit 1972 Rules and of 1974 Rules prior to 17.10.1981 is void ab initio and without jurisdiction. Therefore, unless their such higher placement is based on some authority of law/rule/legal sanction, they had no right to have been assigned such higher placements in any circumstances whatsoever before 17th October, 1981 when the notification as extracted hereinabove whereby 1974 Rules were applied to the Service. 39. Ordinarily, this Court would not have allowed the petitioners to challenge the higher placement of respondents No. 1 to 3 in the seniority lists, Annexures P-2 and P-4 and P-7 after a long gap as was urged by learned Senior Counsel. 39. Ordinarily, this Court would not have allowed the petitioners to challenge the higher placement of respondents No. 1 to 3 in the seniority lists, Annexures P-2 and P-4 and P-7 after a long gap as was urged by learned Senior Counsel. But at the same time, we also cannot lose sight of the fact that unless there was any authority and/or legal sanction behind their such placement in the seniority list, then simply on the ground of delay, petitioners cannot be precluded from raising such a plea. Thus extending the benefit of 1972 Rules in case of respondents No. 1 and 2 and of 1974 Rules in case of respondent No. 3, prior to 17th October, 1981, cannot be upheld. 40. We may clarify here that we have not gone into the question of constitutionality of either 1972 or 1974 Rules, as well as into the plea of the petitioners that respondents No. 1 and 3 had availed benefit of civil employment under the State/Central Government. This is our view was not necessary because on the basis of the material on record we have held as a question of fact that 1971 Rules were not at all applicable and 1974 Rules were made applicable for the first time on and with effect from 17th October, 1981. As such the case law cited at the Bar regarding these pleas is also not being dealt with. 41. For the view that we have taken that Rules of 1972 were not at all applicable and Rules of 1974 became applicable only for the first time with effect from 17th October, 1981, therefore, placement of respondents No. 1 to 3 from the deemed dates by extending the benefit of their military service prior to 17th October, 1981, cannot be upheld and is liable to be struck down. Ordered accordingly. As a consequence of it what follows from this is that tentative seniority lists Annexures P-2 and P-4 and final seniority list Annexure P-7, circulated vide Annexures P-1, P-3 and P-6, respectively, are hereby quashed and set aside. At the same time respondent No. 4 is now directed to redraw the seniority list by assigning proper placement of the petitioners, and proforma respondents in the seniority list by treating 1972 Rules being wholly in applicable and Rules of 1974 being applicable only on and with effect from 17th October, 1981. At the same time respondent No. 4 is now directed to redraw the seniority list by assigning proper placement of the petitioners, and proforma respondents in the seniority list by treating 1972 Rules being wholly in applicable and Rules of 1974 being applicable only on and with effect from 17th October, 1981. Writ petition is allowed in these terms. 42. Before parting with this case we may notice that on the basis of the final seniority list Annexure P-7 respondents No. 1 and 3 have been given further promotions, whereas, respondent No. 2 has already retired. So in this case, this judgment remains merely academic. In these circumstance following the decision of the Supreme Court in the case of A.C. Thalwal v. High Court of Himachal Pradesh and others (supra), it is ordered that with a view to balance the equities and to avoid any hardships to respondents 1 and 3 after allowing this writ petition and setting aside the impugned judgment of the Himachal Pradesh Administrative Tribunal in OA No. 137 of 1988, these respondents shall be allowed to continue to hold the posts presently held by them. They shall be considered by respondent No. 4 for grant of promotion to the posts held by them or to such other post to which they be found eligible to be promoted pursuant to this judgment; and if they were found eligible for such promotion under the rules, they shall be so promoted in future, and for their placement in the seniority list for all purposes their date of promotion will be recognised when they become eligible for it in terms of this judgment. In the event of found being not fit, these respondents shall be reverted to the lower post(s). Till such consideration both the respondents shall be allowed to continue to hold the post presently held by them. It hardly needs to be clarified that if as a result of this judgment petitioners and proforma respondents are found entitled to be placed higher to respondents Nos. 1 to 3, in such a situation they shall be entitled to all consequential benefits not only of promotion but also to the momentary benefits, as well Respondent No. 4 is directed to complete this exercise within four months from today. Costs on the parties.