JUDGMENT Hon’ble D.P. Singh, J.—Heard counsel for the petitioner and the learned Standing Counsel. 2. All the petitioners in this bunch of writ petitions claim that they have passed their diploma course in pharmacy in different years from various recognised institutions and they have registered themselves with the U.P. Pharmacy Council in different years. They have preferred these petitions for quashing of an advertisement dated 12.11.2007 for recruitment as Pharmacist and for a mandate that selection be made yearwise. 3. Earlier, the selections were being made under U.P. Pharmacists Service Rules, 1980 (hereinafter referred as the 1980 Rules) and in view of Rule 15(2), the selection committee was obliged to prepare a list in order of merit according to the marks obtained by them in the diploma examinations. However, by misinterpretation of the provision, selections were being made yearwise and batchwise and not strictly in accordance to the merit, as envisaged in the said rule. 4. An advertisement dated 12.11.2007 was issued inviting applications for recruitment of 766 posts of Pharmacist and it was stipulated therein that the recruitments would be made under the U.P. Procedure for Direct Recruitment of Group ‘C’ Post (Outside the Purview of Public Service Commission) Rules, 2002 as amended in 2003 (hereinafter referred to as the 2002 Rules). 5. It appears that about 800 diploma holders who had applied, filed several writ petitions before the Lucknow Bench of this Court claiming that the recruitments should be held under the 1980 Rules. A learned Single Judge in the case of Sunil Kumar Rai and others v. State of U.P. and others (Writ Petition No.7699 (SS) of 2007) treating it as the leading petition, alongwith several other petitions, vide its judgment dated 23.5.2008, held that the appointments could not be made under the 2002 Rules unless they were amended and, therefore, had to held under the 1980 Rules in the following words : “Consequently, inevitable conclusion is that unless and until sub-rule (3) of Rule 5 of Uttar Pradesh Procedure for Direct Recruitment of Group “C” Posts (Outside the Purview of Public Service Commission) Rules, 2002 and the Uttar Pradesh Procedure for Direct Recruitment of Group “C” Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003 is amended same cannot be pressed into service in reference to clause (a) of sub-rule (3) of Rule 5 vis-a-vis the post of Pharmacist under 1980 Rules.” 6. His Lordship was then confronted with a situation, that despite Rule 15(2) of the 1980 Rules, the selection was being made batch or yearwise i.e. incumbents of an earlier batch or year would be selected according to their inter se seniority, even though they had obtained lesser marks than a candidate of subsequent year or batch inspite of having secured higher marks in the qualifying diploma examination. Considering several earlier judgments on the issue which had interpreted Rule 15(2) of the 1980 Rules, went on to hold : “Consequently, in the facts and circumstances of the present case, all the writ petitions are disposed of with the direction that Director General, Medical and Health U.P. Lucknow is competent to issue advertisement and constitute Selection Committee in terms of Rule 6 of the Uttar Pradesh Procedure for Direct Recruitment of Group “C” Posts (Outside the Purview of Public Service Commission) Rules, 2002 and the Uttar Pradesh Procedure for Direct Recruitment of Grup “C” Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003, but until and unless amendment is made in clause (a) of sub-rule (3) of Rule 5 thereof, selection cannot be undertaken by computing the marks as per procedure prescribed therein rather selection has to take place as per provisions as contained under Rule 15(2) of the U.P. Pharmacists Service Rules, 1980 on the basis of the marks obtained in Pharmacy Diploma Examination, irrespective of the year in which candidate has appeared in Diploma Examination.” (highlighting supplied) 7. Out of those 800 petitioners, only about 300 of the petitioners preferred different special appeals against the said judgment and a Division Bench of this Court clubbed all of them together with the leading petition being Special Appeal No. 377 of 2008 (Prem Chandra and others v. State of U.P. and others), and upheld the interpretation of Rule 15(2) made by the learned Single Judge in the following words : “We have considered the arguments from both the sides with respect to interpretation of Rules 14 and 15 and in particular Rule 15(2) and we find that the interpretation given by the learned Single Judge cannot be faulted on the ground that these Rules require continuation of process of selection for all subsequent years from amongst the batches of Pharmacists, who have secured diploma in the previous years and also in the subsequent years.” 8. However, when confronted with the past practice adopted with regard to batch and yearwise preparation of merit list, though it found that : “The appellants though, under the rules were entitled to be appointed on the basis of their merit, even in the presence of diploma holders of prior batch of lower merit, but were denied consideration for appointment because of the procedure adopted by the State Government in making the appointments, with the result, persons of comparatively lower merit were appointed and are in service, whereas the appellants stand ousted even from the zone of consideration.” 9. Considering various factors, including the fact that only 300 diploma holders were before it and 766 were to be filled up, it observed as under : “We are informed that about 300 diploma holders falling in the same category are before this Court who have been fighting for their cause and, therefore, we feel that the directives issued in these appeals be confined only to those persons who are vigilant and have approached this Court and those who have succumbed to their ouster, would not get the benefit of this order. We may also clarify that as per the statistics given by the appellants’ counsel, there were about 800 writ petitioners but after the decision of the learned Single Judge, only about 300 persons are before this Court and rest of them left themselves to their fate. Such persons cannot be entitled to the benefit of this order.” and went on to hold : “We also take notice of the fact that under the present advertisement, 766 vacancies have been notified, therefore, the present appellants, who are much less in number, can also be considered for appointment, leaving sizeable vacancies for the rest of the candidates. We, therefore, dispose of these special appeals with the direction that the appellants’ cases shall be considered in accordance with the pre-existing practice by considering their appointment on the basis of their merit taking their batches into consideration as was being done earlier but this process would be available only for the appellants and they would be accommodated if they are otherwise found eligible and the remaining vacancies would be filled in by following Rule 15(2) strictly as directed by the learned Single Judge.” 10. It is apparent from the aforesaid judgment that it was clearly stipulated that the benefit of batch and yearwise preparation of merit list would be confined to only those about 300 persons who had preferred special appeals and all others were left out to face selections on merit irrespective of the year in which they had cleared their Diploma examination. 11. The petitioners in this bunch of writ petitions are those diploma holders who did not even challenge the advertisement of 2007 within a reasonable time nor they preferred any special appeal, but after rendering of the judgment in the special appeal on 4.5.2009, they have preferred the present writ petitions claiming that they should also be extended the benefit which was extended to those 300 appellants. 12. The question is, whether, in the teeth of such directions by the Division Bench, the present petitioners can be extended the benefit ? 13. They have relied upon several orders of the Court including by this Court where writ petitions were disposed off extending the benefit of the Division Bench judgment, on the concession by the Standing Counsel that they were identical matters. No decision needs to be cited for the proposition that an order passed on concession cannot be treated as a precedent. They have also relied upon an order of another Division Bench in Special Appeal No. 1139 of 2008 (Ashok Rai and others v. State of U.P. and others) decided on 9.6.2009. The said Division Bench disposed off the appeal only in terms of the judgment dated 4.5.2009. Neither the said Division Bench nor any other Single Judge examined this aspect that the benefit of year and batchwise preparation of merit list had been confined only to the appellants of Prem Chandra’s case. 14. Once the directions are clear and explicit, any deviation with the order of the learned Single Judge as affirmed by a reasoned order of the Division Bench can only be done either through a modification or clarification application but by the same Division Bench under the High Court Rules, or, in appeal by the appellate Court. 15. However, it is urged that by restricting the benefit to only the appellants in Prem Chandra’s case (supra), the petitioners have been discriminated. 15. However, it is urged that by restricting the benefit to only the appellants in Prem Chandra’s case (supra), the petitioners have been discriminated. It has to be borne in mind that Rule 15(2) of 1980 Rules provides merit as the criteria across the board for selection to the post of Pharmacist and which interpretation of the learned Single Judge has been upheld by the Division Bench. However, in view of the prevailing past practice adopted by the Government by adopting batch or yearwise seniority, the Court granted concession to only those appellants who had challenged the judgment of the learned Single Judge. This methodology of applying the principles of laches and acquiescence for depriving the concession or benefit of a decision is not new and has been applied right from 1969, if not earlier. In the case of Durga Prasad v. Chief Controller of Imports and Exports, 1969 (1) SCC 185 and followed up by the Apex Court in Rup Diamonds v. Union of India, 1989 (2) SCC 356 the Apex Court denied the benefit of the decision to “fence sitters" who had not raised any challenge at earliest point of time. Even in Service Jurisprudence, the principle has been employed extensively. In Ashok alias Somanna Gowda and another v. State of Karnataka and others, JT 1991 (4) SC 160 with regard to selection of Assistant Engineers, the Supreme Court held that allotment of 33% of total marks for interview was illegal, and though it extended the benefit of the ratio to the candidates before it but it denied the benefit to other candidates who had not approached the Court within time in the following words : “Learned counsel appearing on behalf of the State of Karnataka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection. In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within reasonable time. We are thus inclined to grant relief only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time.” 16. We are thus inclined to grant relief only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time.” 16. Recently, the Apex Court, summarising the statement of law of various decisions, in the case of U.P. Jal Nigam and another v. Jaswant Singh and another, 2006 (11) SCC 464 refused to extend the benefit of its earlier decision increasing the retirement age of the employees of Jal Nigam, in the following words : “In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted...” 17. Apart from the aforesaid, as already observed above, any tinkering with the order would amount to either modification or as sitting in appeal over the said judgment. Both are against judicial discipline. 18. Several judgments have been placed before the Court to canvass that the benefit of the judgment rendered in similarly situated cases can be extended to the petitioners also but, as already mentioned, these aspects have to be examined by that very Division Bench or the appellate Court. 19. For the foregoing reasons, no relief can be granted to the petitioners and accordingly writ petitions are dismissed, subject to the observations made hereinabove. ————