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2009 DIGILAW 591 (JK)

Nisar Hussain Hakim v. Union Of India

2009-11-26

HAKIM IMTIYAZ HUSSAIN

body2009
1. In view of the nature of controversy involved, submissions made and reliefs prayed all these petitions are taken up for consideration together and disposed of by this common judgment. 2. Petitioners are members of the State Forest Service. They were appointed as Assistant Conservator of Forests (ACF) in the year 1984 under order no. FST-210 of 1984 dated 25.2.1984 on the recommendations of the State Public Service Commission (the Commission). Petitioner-Nisar Hussain Hakim figured at S.No.3 and petitioner-Manzoor Ahmad Tak figured at S.No.6 of the appointment order. 3. Petitioners along with private respondents (no.7 to 41) were brought on select list for appointment to the Indian Forest Service (IFS) vide order dated 12.9.1995. This list was challenged through a writ petition before this Court by one Vijay Singh Charak. The petition was dismissed by a Single Bench of this Court. LPA filed against the judgment also got dismissed but a SLP filed before the Supreme Court against the judgment in LPA was allowed and the select list dated 12.9.1995 was quashed by the court on the ground that the list has been prepared by clubbing vacancies arising between 1991-1995 in the IFS, which was not permissible under the rules. The court directed the State Government to prepare a fresh select list for each year separately considering only those persons/officers who were eligible for selection in that particular year. The State Government has now prepared a seniority list vide Government order no. 308-FST of 2008 dated 22-7-2008. The petitioners are aggrieved of the same. 4. Under Rule-3 of the Indian Forest Service (Regulation of Seniority) Rules, 1997 (IFS Rules) a member of the State service who has completed eight years continuous service can be considered for his induction into the IFS. Petitioners admittedly are ineligible as they being appointees of the year 1984 had not the requisite length of service in the year 1991. They became eligible for consideration in the year 1993. Private respondents are being considered for their induction into IFS. The petitioners are aggrieved of it. Through the medium of the present petitions, they challenge consideration of the private respondents for their induction into IFS. They contend that basic appointment of the respondents is void ab intio as such they cannot be considered for induction into IFS. Private respondents are being considered for their induction into IFS. The petitioners are aggrieved of it. Through the medium of the present petitions, they challenge consideration of the private respondents for their induction into IFS. They contend that basic appointment of the respondents is void ab intio as such they cannot be considered for induction into IFS. Main ground taken by the petitioners in this behalf is that the appointment of the respondents as ACF was without a proper consultation with and on the recommendation of the Commission on non-existent posts. In these circumstances the petitioners pray for quashing appointment of the respondents as Assistant Conservators of Forests (ACF). In alternative the petitioners pray that if the basic appointment of the private respondents is not interfered with, they be declared as ineligible for induction into IFS as they have not completed eight years of continuous service as required by Rule-3 of the IFS Rules. 5. To properly understand the contentions raised by the petitioners, facts regarding appointment of the private respondents may be noticed. 6. In the year 1977, vide Order no: 35/FST of 1977 dated 20.4.1977, the Government appointed one Shamim Ahmad Khan as ACF, on the recommendations made by the Commission. Recommendation was made by the Commission on a competitive examination held in 1976-77 in which private respondents also participated. Admittedly at the time of appointment of Shamim Ahmad Khan respondents names were not recommended by the Commission. Record regarding advertisement showing number of posts for which selection was conducted is not available as reportedly the same got gutted but from the available record it is evident that recommendation of only one candidate was made by the Commission. It appears there was no other post available under direct recruitment quota at that time for appointment of other selected candidates. In July, 1977 strength of ACFs was raised by 26 posts. On the availability of new posts, Government asked the Commission to forward to it list of candidates who had qualified the said examination. Accordingly a list of 30 such candidates was forwarded. From this list Government picked up five persons namely Subash Chander Sharma (S. No: 2), Suraj Prakash Sharma (S. No: 5), Harinder Singh (S. No: 6), Abdul Qayoom Khan (S. No: 9) and Asgar Inayattullah (S. No: 29) and appointed them as Assistant Conservator of Forests vide order no. I FST of 1978 dated 4.1.1978. From this list Government picked up five persons namely Subash Chander Sharma (S. No: 2), Suraj Prakash Sharma (S. No: 5), Harinder Singh (S. No: 6), Abdul Qayoom Khan (S. No: 9) and Asgar Inayattullah (S. No: 29) and appointed them as Assistant Conservator of Forests vide order no. I FST of 1978 dated 4.1.1978. Though the order shows that the candidates were appointed on the recommendation of the Commission but in fact there was such recommendation at all and this fact was made clear by the Deputy Secretary of the Commission in a letter no. PSC/Ex/2759/78 dated 19.6.1978 in which it was stated that the Commission did not make any such recommendation but it only furnished to the Government a list of candidates who took the competitive examination, on the request of the Forest Department. Though the respondents question the competence of the Deputy Secretary to address such a communication but the fact remains that there was no formal recommendation by the Commission as required under Art.320(3) of the Constitution of India. 7. These five persons appointed by the Government vide order dated 4.1.1978 were not as per their merit in the said list but figured at S.No. 2, 5, 6, 9 & 29 of the list of candidates sent by the Commission to the Government. 8. Since the appointments was not as per merit, some of the candidates figuring above these five persons filed various petitions before this Court for their appointment too on the ground that candidates who figured below them in the merit list have got the appointments. In these petitions, Government agreed to their appointment too. Thus, respondents Mahesh Chander, Mohd. Hussain, Manzoor Ahmad and Arun Kumar got appointed on 8.1.1981 and respondents Upinder Pachnanda, Ashok Kumar Gupta, Manu Raj Singh, Lalit Kumar Sharma, Vijay Singh Charak, Mukerjeet Sharma, Hafizullah Siddiqui; and Badri Nath Koul got appointment on 24.2.1984. 9. Meanwhile, the respondents had initiated second process of selection to the posts of ACFs vide notification dated 30.8.1980. By the time appointments of private respondents were made, the selection process initiated vide notification dated 30.8.1980 got completed and orders regarding appointment of 27 persons including the petitioners Nisar Hussain Hakim and Manzoor Ahmad Tak as ACF was ordered vide Government order no: FST-210 of 1984 dated 25.2.1984. 10. In the year 1985 respondents Mohd. By the time appointments of private respondents were made, the selection process initiated vide notification dated 30.8.1980 got completed and orders regarding appointment of 27 persons including the petitioners Nisar Hussain Hakim and Manzoor Ahmad Tak as ACF was ordered vide Government order no: FST-210 of 1984 dated 25.2.1984. 10. In the year 1985 respondents Mohd. Hussain Shah and others filed a writ petition bearing SWP No. 1040/1985 seeking retrospective effect of their order of appointment on the ground that ACFs appointed vide order dated 4.1.1978 were junior to them in the merit list so they were entitled to appointment with effect from the date these persons were appointed i.e, 4.1.1978. The petitions were allowed by the court vide judgment dated 29.7.1989 and it was directed that the petitioners shall be deemed to have been notionally appointed for the purposes of seniority w.e.f 4.1.1978. A bunch of writ petitions filed by Vijay Singh Charak, Manu Raj Singh and Upinder Pachnanda also came to be decided by the Jammu wing of this court vide its judgment dated 10.8.1988, in which the court directed that the petitioners in the said writ petitions are also entitled to notional seniority as from 4.1.1978. The Government accepted judgments in all these cases and vide Government Order No: 52 FST of 1991 dated 8-3-1991 gave retrospective effect to appointments of these officers treating them having notionally appointed as on 4.1.1978. 11. A revised seniority of all officers as on 1.1.1991 was prepared by the Government and published vide order dated 25.3.1991 in which the Government granted notional appointment to all the officers who were appointed between 20.4.1977 and 24.2.1984 as from 4.1.1978. Thus the private respondents seniority was shown as from 4.1.1978 while as the present petitioners got their seniority w.e.f, 25.2.1984 i.e, the date of their first appointment. 12. In the year 1994 one A.K.Mishra also got appointed with deemed seniority as ACF w.e.f 24.2.1984. He was directed to be shown above the petitioners. This was done on a writ petition filed by said A.K.Mishra. 13. In the year 1991 the Government started a process of induction of officers into IFS. Since the respondents were senior to the petitioners their cases too were considered for their induction into IFS. They along with six more persons filed a petition in this court (SWP no. 249/91) on 18.3.1991. 13. In the year 1991 the Government started a process of induction of officers into IFS. Since the respondents were senior to the petitioners their cases too were considered for their induction into IFS. They along with six more persons filed a petition in this court (SWP no. 249/91) on 18.3.1991. The petitioners prayed for quashing of eligibility list of the officers of State Forest Department for induction into IFS, prepared by the official respondents on the basis of seniority list of 25.1.1990. The petitioners also prayed for quashing of the revised seniority list dated 25.1.1990 and Government orders by means of which private respondents were appointed and given notional promotion w.e.f, 4.1.1978. This petition alongwith other connected writ petitions was considered by this court and vide its order dated 11.3.1993, the court found that on the assurance of the State Government that the issues arising in the petition would be considered by the selection committee, the petitioners had agreed to withdraw the writ petitions. Accordingly the writ petitions were dismissed as withdrawn. Thereafter, the matter was considered by the selection committee and both the petitioners and private respondents alongwith other ACFs except Vijay Singh Charak were inducted into IFS. Thus since the petitioners were also included in the select list prepared by the respondents for induction into IFS, they did not raise any objection regarding induction of private respondents too into IFS. They agreed to the action taken by the selection committee and the official respondents in this behalf and accepted their induction alongwith induction of private respondents into IFS directed vide order dated 28.3.1999. Vijay Singh Charak, who was appointed alongwith the private respondents under the appointment orders made between 1978 to 1984 though, was considered by the selection committee but he did not find his name in the select list. As noticed above he challenged the selection and ultimately the matter went up to the Apex Court where by the judgment dated 26.2.2007 the court quashed the select list. The court in this behalf observed as under:- "...In view of the above, the appeal is allowed. The impugned judgment of the Division Bench as well as the Single Bench of the High Court are set aside. Resultantly, the impugned Select List dated 12.9.1995 is quashed. The court in this behalf observed as under:- "...In view of the above, the appeal is allowed. The impugned judgment of the Division Bench as well as the Single Bench of the High Court are set aside. Resultantly, the impugned Select List dated 12.9.1995 is quashed. The State Government is directed to prepare a fresh Select List for each and considering only those persons/officers who were eligible for selection in that particular year. This exercise must be completed as expeditiously as possible. Any selection made in pursuance of the Select List dated 12.9.1995 stands quashed. Fresh selections and appointments will be made as directed above." 14. In terms of the judgment of the Honble Supreme Court vacancies have to be determined year-wise and the officers who are eligible in the year vacancy become available are alone entitled to consideration in that year. Thus under the judgment vacancies till 1991 (32 in number) are required to be filled up and only such officers who have put in continuous service on substantive basis for a period of 8 years are eligible and can be considered against these vacancies. 15. The official respondents have now vide Govt. Order no: 308-FST of 2008 dated 22.7.2008 read with corrigendum to the said order prepared a seniority list of State Forest Service Officers from 1.1.1980 to 1.1.1991 and w.e.f 1.1.1991 to 31.12.1995 in which private respondents figure senior to the petitioners. Date of appointment of the private respondents has been shown as 4.1.1978 while as date of appointment of the petitioners is given as 25.2.1984. The officers are being considered for their induction into IFS on the basis of this list. Petitioners have challenged the said seniority list. 16. In SWP No. 945 of 2007 the Court in its order dated 12-7-2007 directed that the respondents shall accord consideration to the points raised in the petition 249 of 1991. The matter has been considered by the Government and vide order dated 23-7-2008 the contentions of the petitioners has not been accepted. 17. 16. In SWP No. 945 of 2007 the Court in its order dated 12-7-2007 directed that the respondents shall accord consideration to the points raised in the petition 249 of 1991. The matter has been considered by the Government and vide order dated 23-7-2008 the contentions of the petitioners has not been accepted. 17. As noticed above learned counsels for the petitioners have objected to the consideration of the private respondents into the IFS on two main grounds; firstly that their appointments being dehors the rules, they cannot claim consideration for induction into the said service; secondly that the notional seniority accorded in favour of the private respondents would not make them eligible for induction into IFS as the retrospective service treated as notional service would not qualify for and count against eight years continuous service as required by the rules. 18. In support of their contentions, learned counsels have referred to the recommendations made by the Commission in respect of Shamim Ahmad Khan and his appointment as ACF in the year 1977, appointment orders of five private respondents made on 4.1.1978 and appointment of other private respondents from 1978 to 1984 with retrospective effect from 4.1.1978. Learned counsels have also referred to the rule position in this behalf and submitted that since there was no post available for the appointment of private respondents their appointment was not in accordance with the settled principles of service jurisprudence. It is also submitted that since there was no proper recommendation as is required under the rules by the State Public Service Commission, the State Government could not have directed appointment of these persons. Learned counsels further submit that though the respondents got benefit of retrospective appointment on notional basis this would remain confined to fixation of their seniority only vis-a-vis appointees under the order dated 4.1.1978 and it would not confer them any further benefit by treating their service as continuous service for the purpose of Rule 3 of the IFS Rules. 19. Learned counsels appearing for the official respondents as well as private respondents have vehemently resisted the contentions of the petitioners. Learned counsels would submit that since the petitioners have entered the service after 24.2.1984 i.e, the date when the respondents got appointed, and thus being junior to private respondents in all respects, they cannot question appointment of the private respondents. Learned counsels appearing for the official respondents as well as private respondents have vehemently resisted the contentions of the petitioners. Learned counsels would submit that since the petitioners have entered the service after 24.2.1984 i.e, the date when the respondents got appointed, and thus being junior to private respondents in all respects, they cannot question appointment of the private respondents. Learned counsels further state that the petitioners cannot also question grant of notional service in favour of the private respondents w.e.f, 4.1.1978, as this has not in any way affected the placement of the petitioners in the seniority list as they figure below private respondents in the seniority. 20. Mr. Magray, Sr.AAG would submit that the present petitions are not maintainable as the relief asked for cannot be granted to the petitioners. Learned Counsel refers to the Govt. Order No: 52 FST of 1991 dated 8-3-1991and states that as this order remains un challenged by the petitioners they cannot question correctness of the seniority list now which is based on the said order. Learned counsel further submits that the seniority list impugned in the present petitions has been prepared keeping in view the observations made by the Apex Court and that the same is in accordance with the rules governing the matter. He further submits that challenge of the petitioners to the appointment and retrospective appointment of respondents appointed from 1978 to 1984 is untenable as the petitioners have not challenged appointment of five respondents appointed in the year 1978. Since that appointment remains unchallenged the appointments of other respondents, made on the basis of the orders of the Court are not now open to challenge. 21. Mr. A. Amin, learned counsel for the Commission submits that the record of the Commission regarding first advertisement in the year 1976 is not available in the Commission as the same got destroyed in a devastating fire in which most of the Commissions record was gutted. But from the available record, contends the learned Counsel, it cannot be said that only one post of ACF was notified as is alleged by the petitioners, so the argument that recommendation of only one candidate namely Shamim Ahmad Khan was made by the Commission cannot be accepted as correct. 22. Mr. Riyaz A Jan would vehemently contend that the petitioners do not have any locus to file the present petition. 22. Mr. Riyaz A Jan would vehemently contend that the petitioners do not have any locus to file the present petition. The petition cannot be treated as public interest litigation and the petitioners having got no right, the petition is not maintainable at all. Relying on various authorities of the Apex Court, mention of which will be made later on, Mr. Jan submits that to maintain a writ petition a person must have a right which he feels has been violated or denied. In the present case the petitioners being junior to the respondents in all respects cannot maintain a writ petition and allege violation of any such right. 23. Mr. M. Y. Bhat has referred to various other provisions of the IFS Rules to show that there was a vast difference between `continuous service and `Actual continuous service. In case of Commissioned Officers who are appointed to IFS, they must have at least four years Actual service in the State Forest Service while as there is no such requirement in case of those who join the State Forest Service on regular basis. Only an uninterrupted service of eight years is required in the later case and even an experience is not required in such case. Any service rendered by such officers on notional basis can be added to their service while calculating eight years of their continuous service. 24. Mr. Majid Jehangir appears for Sh. Shamim Ahmad Khan who has prayed for his impleadment as party in the case. His appointment is not under challenge and in view of the order which I propose to pass in these petitions there is no need to consider his application. 25. On consideration of the matter, I could not find any merit in the contentions raised by the learned counsels for the petitioners. 26. Appointments of the petitioners has been made on 24.2.1984 while as the appointment of private respondents is prior to this date i.e, from 4.1.1978 to 23.2.1984. On entering the service the petitioners never disputed the appointment of the private respondents. Retrospective effect of their appointment w.e.f 4.1.1978 and their seniority has been fixed accordingly vide Government order no: 52 FST of 1991 dated 8-3-1991 but this has not been objected to by the petitioners. On entering the service the petitioners never disputed the appointment of the private respondents. Retrospective effect of their appointment w.e.f 4.1.1978 and their seniority has been fixed accordingly vide Government order no: 52 FST of 1991 dated 8-3-1991 but this has not been objected to by the petitioners. Petitioners were in service on that date and they were aware that retrospective effect of the appointment of the private respondents was ordered by the Government but they did not challenge it. Now the petitioners cannot be allowed to challenge it. 27. In Yashbir Singh v. Union of India AIR 1988 SC 662 it was held that anyone who may feel aggrieved with an administrative order or decision affecting his right should act with due diligence and promptitude and not sleep over the matter. Raking of old matters after a long time is likely to result in administrative complications and difficulties and it would create insecurity and instability in the service which would affect its efficiency. 28. It is stated by the petitioners that the respondents got benefit of retrospective appointment under the court orders passed in petitions filed by these respondents to which they (the petitioners) were not parties so same was not binding on them but this would not matter as they could have challenged the orders granting benefit of retrospective appointment to them, by a separate writ petitions, if they felt aggrieved of the same. 29. No doubt the seniority list of 25.1.1991 was assailed by the petitioners through a writ petition, alongwith other officers who too had filed separate writ petitions, but they left it half way and agreed to withdraw the writ petitions on the assurance given by the State. These writ petitions got dismissed as withdrawn without liberty to the petitioners to file a fresh petition. Thereafter, the matter was considered and the petitioners alongwith private respondents were inducted into IFS. This time the petitioners did not object to the induction of the private respondents into IFS. 30. The petitioners were satisfied with the assurance given by the Government that the issues raised by them would be considered. They did not ask for further adjudication and did not press for any relief. This time the petitioners did not object to the induction of the private respondents into IFS. 30. The petitioners were satisfied with the assurance given by the Government that the issues raised by them would be considered. They did not ask for further adjudication and did not press for any relief. They cannot now, by filing another petition reopen the case and ask for the same relief which they themselves gave up earlier, after such a long period particularly when the status of the respondents was not objected to by them at the time of grant of IFS to them alongwith the petitioners. Reference in the behalf may be made to A.K.Bhattacharyya v. Union of India 1991 Supp (2) SCC 109. 31. Learned counsel for the petitioners submits that since the petitioners also got inducted they had no grievance except that allotment of a proper year for which they agitated the matter separately but this in my view was not sufficient. If the petitioners found that the appointment of the private respondents was not proper and the same was void being contrary to the rules, as alleged by them they should not have accepted this position. If the official respondents treated private respondents as validly appointed officers and on that basis considered their cases also for induction into IFS, the petitioner should have objected to it. They have decided to do so only when their induction into IFS alongwith other candidates has been quashed by the Apex Court and the respondents are now undergoing a fresh exercise in this behalf under the directions of the Court. 32. In these circumstances, I find the petitioners are now estopped from challenging the basic appointment of the private respondents. 33. Appointments of respondents Subhash Chander Sharma, Suraj Prakash Sharma, Harinder Singh, Abdul Qayoom Khan and Asghar Inayatullah has already remained subject matter of a number of writ petitions. Other respondents too have got appointments only after they moved the court in this behalf and retrospective effect to their appointments was given on the intervention of the court only. In these circumstances I do not find it just and fair to reopen these issues again after such a long time and thus unsettle the issues which have with the passage of time and by the decisions of the courts, conduct of the parties and the orders of the government attained finality. 34. In these circumstances I do not find it just and fair to reopen these issues again after such a long time and thus unsettle the issues which have with the passage of time and by the decisions of the courts, conduct of the parties and the orders of the government attained finality. 34. In earlier petitions the petitioners did not challenge order no.l-FST of 1978 by means of which respondents Subhash Chander Sharma, Suraj Prakash Sharma, Harinder Singh, Abdul Qayoom Khan and Asghar Inayatullah were appointed, though they were aware of it. Only orders dated 24-2-1984 and 8-4-1981 were challenged in respect of which the petition was withdrawn. Appointments made vide the subsequent orders have got their basis in the order no.l-FST of 1978. In these circumstances I do not find the petitioners can challenge order no.l-FST of 1978 now. 35. So far the second limb arguments of the learned counsels for the petitioners regarding counting of eight years service of the private respondents is concerned, here again I find no force in the submissions. 36. Learned counsel for the petitioners refer to the retrospective appointment on notional basis granted to the private respondents and would submit that the notional service granted to these respondents was no substitute for the requirement of eight years continuous service as ACF which has been laid down in the rules as the eligibility criteria for induction into IFS. Mr. Shah, Sr. Advocate would on this basis argue that respondents were not eligible for induction into IFS against the vacancies available in the year 1991 as they had not completed 8 years of continuous service as required under Rule 3 of the IFS Rules. According to the learned counsel the words "continuous service" in the Rule means service actually and continuously rendered against a post and that the fiction of notional service, granted on the basis of judgments of this court could not amount to the eight years service required under the Rules. 37. Mr. Jehangir, learned counsel would while reiterating the stand taken by Mr. Shah submit that there being difference between substantive appointment and appointment against a substantive post, for the purpose of Rule 3 an officer must have not only been appointed against a substantive post but he should also have eight years continuous substantive appointment against the post. 38. 37. Mr. Jehangir, learned counsel would while reiterating the stand taken by Mr. Shah submit that there being difference between substantive appointment and appointment against a substantive post, for the purpose of Rule 3 an officer must have not only been appointed against a substantive post but he should also have eight years continuous substantive appointment against the post. 38. Mr.M.Y.Bhat, learned counsel for the respondents has drawn my attention to an order of the Central Administrative Tribunal in R.A. No: 84/2004 in O.A No: 2397/2002 Sanjay Kumar Sinha & Ors v. Union of India decided on 22.3.2004 where a similar issue in respect of the same service was raised. Private respondents too were parties in the said petition. It was stated before the Tribunal that the seniority of the respondents has to be counted by the service rendered by them, the service rendered would be when they actually joined and not when notionally promoted from the back date. It was a seniority dispute where the petitioners before the Tribunal claimed seniority over the respondents who happen to be private respondents in the present petitions also. The issue which arises in the present petition arose in that case too and the same was carefully examined by the Tribunal. The Tribunal on considering the meaning of word `notional and `render found that there was no merit in the submissions of the petitioners and that in view of the circumstances benefits have to be given to the respondents as they must be deemed to have rendered the service as they could not get appointment at the relevant time. The Tribunal in this behalf observed as under:- "...At the first blush, if we were to be waved by the different definitions of the expression `notional and the expression "rendered" perhaps there could be something for the applicants. We know from the decision rendered by the Supreme Court in the case of Ram Narain v. The State of U.P. AIR 1957 SC 08 is that:- "The meanings of words and expressions used in an Act must take their colour from the context in which they appear." 39. Necessarily, the words used have to draw their colour and strength from the context in which they find place in the judgment of the Rules. Necessarily, the words used have to draw their colour and strength from the context in which they find place in the judgment of the Rules. The High Court of Jammu & Kashmir granted the notional benefit of seniority keeping in view that a person senior to them on merit list had been appointed for all practical purposes. Therefore, benefits have to be given to the private respondents. They must be deemed to have rendered the service because it was not at their avocation that they were not rendering the service or could not join at that relevant time. 40. Therefore, to give correct meaning of the expression notional and service rendered, the only logical conclusion can be that benefit of the expression service rendered would mean from the date the junior had been appointed and the benefit was given by the High Court of Jammu & Kashmir. 41. I have gone through the reasoning recorded by the Tribunal in this behalf and find it convincing and forceful. On this basis I find the petitioners cannot be allowed to object to the grant of notional service to the respondents at this stage and their plea not to count the service for the purpose of Rule 3 cannot sustain. 42. The notional appointment was given to the private respondents to right the wrong that had been done to them by not appointing them when candidates below them in the merit list were appointed. If they are now denied the right to be considered for induction into IFS on the basis of such notional appointment it would result in perpetuating the wrong done to them. Which cannot be permitted. Reliance in this behalf can be made on Union of India v. K.B.Rajoria 2000 (3) SCC 562. 43. The High Court has in earlier petitions allowed the respondents the benefit of retrospective service for the reasons recorded by the High Court in the judgments in these petitions and those orders have attained finality, I see no reason to deprive them of that period of notional service. 44. Learned Counsels for the respondents have strongly objected to the right of the petitioners to file the present petition. Admittedly the petitioners do not have any right of consideration for the IFS posts which became available in the year 1991. They have got therefore no locus to challenge consideration of the private respondents against these posts. 44. Learned Counsels for the respondents have strongly objected to the right of the petitioners to file the present petition. Admittedly the petitioners do not have any right of consideration for the IFS posts which became available in the year 1991. They have got therefore no locus to challenge consideration of the private respondents against these posts. On this ground and relying on Calcutta Gas Company Ltd. V. State of W.B., AIR 1962 SC 1044, they would argue that the petitioners have got no legal right to apply for a writ under Art. 226. In the said authority the Apex Court laid down that: "Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In State of Orissa v. Madan Gopal. 1952 SCR 28: (AIR 1952 SC 12) this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Art. 226 of the Constitution. In Charanjit Lal Chowdhuri v. Union of India, 1950 S C R 869: (AIR 1951 S C 41), if has been held by this Court that the legal right that can be enforced under Art. 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. We do not see any reason why a different principle should apply in the case of a petitioner under Art. 226 of the Constitution. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warrant this rule may have to be relaxed or modified". 45. Applying this principle I find the petitioners do not have any legal right to ask for any relief in the shape of writ in the present case. 46. 45. Applying this principle I find the petitioners do not have any legal right to ask for any relief in the shape of writ in the present case. 46. Mr. Shah would submit that though the petitioners do not have any immediate right of consideration against the posts of the year 1991 but if the respondents are found ineligible for these posts on the grounds taken, the posts would fell vacant and get carry forward to the year 1993 and that in that year the petitioners will got eligibility for consideration. I find on this basis the petition cannot sustain. Existence of a legal right at the time of filling of the petition is a condition precedent and it cannot lie on the basis of a right which may accrue to the petitioner in future. 47. For these reasons, I find no merit in the present petitions, which are hereby dismissed. All interim directions shall stand vacated. Connected CMPs shall stand disposed of accordingly.