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2015 DIGILAW 686 (JK)

State of J&K v. Farooq Ahmed Mir

2015-12-22

B.S.WALIA, HASNAIN MASSODI

body2015
JUDGMENT : B.S. Walia, J. 1. Vide this judgment, we are deciding LPASW No. 153/2003 titled as 'State of J&K and Ors. v. Farooq Ahmed Mir & Ors.' which raises a challenge to the decision of the learned Single Judge dated 17.05.2001 allowing SWP No. 630/1995 as also LPASW No. 184/2009 titled as 'Adil Rasheed Zargar and Ors. v. State of J&K and Ors.' which raises a challenge to the order of dismissal dated 28.08.2009 in SWP No. 307/2006. Both the petitions involve the question regarding maintaining of common seniority list at the level of Sub Inspectors of the Executive/Armed/Auxiliary/Telecommunication wings of the Police. SWP No. 630/1995 was filed by Farooq Ahmad Mir and others i.e. directly recruited Sub Inspectors of the year 1989 in the Armed Police with the grievance that employees of all wings of the Police Department except Armed Police were transferable from one wing to the other upto the rank of Inspector and that instead of maintaining separate seniority list of Sub Inspectors in Armed Police and different wings of the department, directions be issued to the official respondents for maintaining combined seniority list of Sub Inspectors working in the police department including Armed Police and further to direct their transfer from the Armed Police to any other wing of the Police Department, thereby giving such Sub Inspectors equal chance to show performance in the discharge of duties in the other wings instead of keeping them as also the Inspectors of the Armed Police as a segregated force. Further prayer was that in case the High Court came to the conclusion that Sub Inspectors and Inspectors of Armed Police could not be transferred to other wings and vice versa, then the post of Dy. SP borne on the strength of Armed Police be directed to be filled up from the post of Inspector borne on the Armed Police cadre and not from other wings of the Police Departments. Lastly, that in case there existed any rule permitting segregation of the petitioners as Sub Inspectors in Armed Police, then the said rule was ultra vires the provisions of Part III of the Constitution of India and liable to be struck down as such. 2. Likewise SWP No. 307/2006 titled 'Adil Rasheed Zargar & Ors. Lastly, that in case there existed any rule permitting segregation of the petitioners as Sub Inspectors in Armed Police, then the said rule was ultra vires the provisions of Part III of the Constitution of India and liable to be struck down as such. 2. Likewise SWP No. 307/2006 titled 'Adil Rasheed Zargar & Ors. v. State and Ors.' was filed by directly recruited Sub Inspectors of the year 1998 of the Telecommunication Wing of the police department praying for issuance of directions for consideration, preparation and maintaining of common seniority list of Sub Inspectors of Police belonging to the Executive/Armed/Auxiliary/Telecommunication wings and to depict the petitioners at appropriate place in the said common seniority list as their representations over the years had proved futile, and to grant them all consequential benefits in respect thereto with a further prayer for directing the official respondents to promote the petitioners to the rank of Inspectors w.e.f. 21.07.2005 i.e. the date when proforma respondent Nos. 4 to 19 were promoted as Inspectors. 3. While SWP No. 630/1995 was allowed by taking note of the provisions of Sections 4 & 5 of the J&K Police Act, 1927, Rules 172(4) of the J&K Police Rules, 1960, decision in LPA No. 28/1972 and by holding that the entire police force was a single entity and a common seniority had to be maintained and promotions made accordingly, SWP No. 307/2006 was dismissed vide judgment dated 28.08.2009 on grounds of difference of duties of the Telecom Personnel in comparison to personnel borne on the strength of Executive and Armed Police, different method of recruitment in the different wings as also of separate seniority lists having been maintained as per practice in the department from the beginning and of promotions having been made ever since on the said basis. 4. 4. Judgment of the learned Single Judge allowing SWP No. 630/1995 has been impugned by the State inter alia on ground of there being different Cadres i.e. Armed and Executive and the non consideration of allocation of Armed Cadre to the respondents/petitioners upon selection and in case of their not being satisfied with the allotment of the cadre then the requirement of the petitioners to have agitated the matter immediately but of the same not having been done and the respondents/petitioners in full knowledge of the factual position and without any protest or demur joining the Armed Cadre of the police knowing fully well that seniority in the two cadres i.e. Armed and Executive was to be maintained separately, therefore it could not be said that the respondents/petitioners had joined as Sub Inspectors in the Armed police with a belief that there would be common seniority with the Executive cadre, besides the claim being hit by delay and laches. 5. Additionally it was urged that reliance by the learned Single Judge on the decision of the Division Bench in LPA No. 28/1972 dated 05.12.1972 in case titled 'Inspector General of Police v. Kashi Nath Koul' was without considering Rule 6 of The Jammu & Kashmir Police Rules, 1960 which specifically provided for maintenance of a special force i.e. Jammu & Kashmir Armed Police at Srinagar and Jammu for meeting any emergency in the law and order situation throughout the State and of the said force being essentially a task force, normally not to be deployed on duties of a routine nature as were performed by the Civil or the District Armed Reserve and that in view of the aforementioned position, there was no reason as to why seniority upto the post of Inspector could not be maintained separately, therefore, the learned Single Judge had failed to consider that keeping of separate seniority of Armed and Executive police was not against the provisions of law and that by doing so, no injustice had been done to any person. Pointed reference was made to the observations of the Division Bench in LPA No. 28/1972 dated 05.12.1972:- "Our attention has not been invited to any rule or Government order which direct that the JKAP which is maintained at Srinagar and Jammu for internal security of the State and is ordinarily used throughout the State to meet any emergency in the law and order situation is to be treated as a separate range." 6. On the basis of the aforementioned observations, it was contended that it was only on account of failure to bring Rule 6 to the notice of the Division Bench that the decision in LPA No. 28/1972 dated 05.12.1972 had been rendered and the said decision had been relied upon by the learned Single Judge leading to the instant LPA. A categorical stand has been taken that in view of Rule 6, it could be safely said that separate seniority list could be maintained. 7. In the light of the aforementioned background, prayer has been made for allowing the appeal and dismissing SWP No. 630/1995 filed by the respondent/petitioners i.e. Farooq Ahmad Mir and others. 8. On the other hand, judgment of the learned Single Judge dismissing SWP No. 307/2006 has been impugned on the grounds that under Section 5 read with Section 4 of the Act, the entire police force was one and in view thereof a common seniority list of all Sub Inspectors was to be maintained for the purposes of promotion to higher ranks in terms of Rule 172(4) of the Rules as per which seniority of Inspectors and Sub Inspectors was to be at the inter-range level i.e. common seniority irrespective of the range in which a Sub Inspector was serving and the aforementioned aspect of the matter i.e. of seniority of Sub Inspectors to be at inter range level having already been decided by a Division Bench vide judgment dated 05.12.1972 in LPA No. 28/1972. Reliance was also placed on the decision of a learned Single Judge of this Court dated 17.05.2001 in Tarooq Ahmad Mir & Ors. v. State and Ors.' i.e. SWP No. 630/95 : JKJ Soft JKJ/19469 wherein the same controversy was in issue. Further grievance is that although both the decisions were noticed, yet the same were not dealt with while deciding the writ petition. v. State and Ors.' i.e. SWP No. 630/95 : JKJ Soft JKJ/19469 wherein the same controversy was in issue. Further grievance is that although both the decisions were noticed, yet the same were not dealt with while deciding the writ petition. It was also contended that the finding by the learned Single Judge based on the supplementary information furnished by the respondent-State that the method of recruitment in different wings of the department was different, was not based on facts as the method of recruitment of Sub Inspectors for both the wings was the same, inasmuch as, the post of Sub Inspector in both wings had to be filled-up 50% by direct recruitment and 50% by promotion from eligible ASIs. Similarly, the post of Inspector of both wings was required to be filled up 100% from eligible Sis. It was further contended that even otherwise, the entire police force was one and no distinction had been made under the Police Act between the different wings of the police. Therefore, a common seniority list had to be maintained both for Sub Inspectors as well as Inspectors, inter range. However, the action of the official respondents of maintaining separate seniority lists was arbitrary, inasmuch as, while seniority of Sub Inspectors in Executive Police, Armed Police and Auxiliary Police was maintained separately but at the level of Inspector there was a common seniority list of the Executive, Armed and Auxiliary Police. On the basis of the same, it was contended that if seniority of Inspectors of the Executive, Armed and Auxiliary wings could be common, then there was no reason as to why the seniority at the level of Sub Inspectors in different wings including the Telecommunication wing could not be maintained likewise in view of Rule 172. Further plea is that the entire police force was divided in different wings i.e. Executive Wing/Crime Investigation Department (CID)/Crime/Railways/Traffic/Security/Armed Police and Police Telecommunication apart from Auxiliary Police and that in so far as CID, Crime, Executive, Traffic Wing were concerned, there was a common seniority list and subsequently even the Auxiliary Police also formed part of the common seniority list at the rank of Inspectors, but in so far as Telecommunication wing was concerned, the officers in the said wing were being treated separately and their names were not included in the common seniority list. As regards the Armed Wing of the police, plea is that a separate seniority list was being maintained for Sub Inspectors without there being any mandate for the same, resultantly, Sub Inspectors in the Armed wing were getting promotion of Inspector at accelerated rate in comparison to other police officers, where-after a common seniority list of Inspectors was maintained for the purpose of promotion to the post of Dy. SP. 9. Lastly, it was contended that a wrong practice that promotions in the Armed cadre of the police upto the rank of Inspectors were made as per seniority maintained in the Armed cadre and that seniority upto level of Inspectors in the Executive and Armed Police cadre had been separately maintained could not bind the appellants, therefore, they were well within their right to approach the High Court and seek proper maintenance of seniority in accordance with Rules, that the learned Single Judge had also ignored that although the appellants were serving as Sub Inspectors in the Telecommunication Wing but they had also been discharging duties on the law enforcement side as well. 10. It has further been urged that the learned Single Judge erroneously dismissed the writ petition on the ground that the method of recruitment in different wings of the department was different whereas the position was otherwise as evident from the details as per affidavit dated 28.07.2009 filed by the Director General of Police. It was further contended that even if there was slight difference with regard to any particular qualification required to be possessed for promotion from the post of Sub Inspector to the post of Inspector in any particular wing, non possession of the said qualification by a Sub Inspector belonging to a different wing for promotion in his wing could not be made the basis for denying maintaining a common seniority list since promotion in a particular wing was to be as per qualifications stipulated therein and the said distinction if any sought to be made the basis did not remain on promotion of a Sub Inspector to the post of Inspector, there being a common seniority list in terms of Rule 172. It was further contended that common seniority list of only Inspectors was being maintained whereas in terms of Rule 172 common seniority list of Sub Inspectors as also Inspectors was to be maintained range wise, therefore there was no basis whatsoever for restricting common seniority list only for Inspectors and not maintaining a common seniority list in the case of Sub Inspectors. 11. It was also contended that the reasoning of the learned Single Judge that the Armed Police and Telecom organisation were independent organisations and recruitment/promotions in respect of both the Armed and Telecommunication police were made separately, and that admittedly the petitioners were working in the Telecommunication wing of the department, whereas the private respondents were from the Executive/Armed Wing, which dealt with prevention of crime and maintenance of law and order, while Telecommunication Wing of the department being technical wing, the nature of job of personnel deployed therein was quite different from the nature of duties of the personnel deployed in the Executive and Armed Police was also of no consequence in view of Rule 172 as also the admission in the objections with regard to inter change ability of personnel from one to the other wing. Reference was made to the stand in paragraph No. 7 & 12 of the objections in SWP No. 630/1995 to contend that not only the training given to all probationers was the same in order to meet with any challenge besides Armed Police Personnel were also attached with the Executive Police on operation grounds. 12. It was contended that as per admission in the objections, the Executive Police was the feeding cadre for all other wihgs like CID, Crime, Railways, Traffic, Security etc and that from the post of Inspector onwards, a common seniority in both the cadres was maintained and once promotion was made to the rank of the Dy. SP, the officers were liable to posting/transfer in any wing of the force irrespective of the fact whether the officer was from Executive or Armed Cadre. 13. In the light of the aforementioned submissions, prayer was made for allowing the appeal, setting aside the judgment dated 28.08.2009 rendered by the learned Single Judge in SWP No. 307/2006 in case titled 'Adil Rashid Zargar and Ors. v. State and Ors.' and for allowing the petition filed by the appellants/petitioners. 14. 13. In the light of the aforementioned submissions, prayer was made for allowing the appeal, setting aside the judgment dated 28.08.2009 rendered by the learned Single Judge in SWP No. 307/2006 in case titled 'Adil Rashid Zargar and Ors. v. State and Ors.' and for allowing the petition filed by the appellants/petitioners. 14. It was also contended that the very basis for non maintaining of common seniority list was meaningless in the face of Rule 172 as well as the order of the Hon'ble Division Bench dated 17.12.2012 and the affidavit filed in respect thereto. It was contended that in its order dated 17.12.2012 in LPASW No. 153/2003 c/w LPASW No. 184/2009 the Hon'ble Division Bench while observing that the Police Rules did not suggest existence of sub-cadres like Armed/Executive Police etc. and in the absence of any indication to that effect in the rules the State had been directed to file additional affidavit whether any Administrative order had been passed to create cadres like Executive Police or Armed Police or any other wing stipulating maintenance of separate ranking list/seniority list/gradation list and the affidavit dated 11.03.2013 filed in respect thereto, apart from giving details of vacancies at different periods of time also mentioned that from the post of Inspector, common seniority was maintained at PHQ level and that although inter-se seniority of all the sub-cadres of the Police from constable upto Sub-Inspectors had been maintained separately right from their creation, but Administrative orders regarding separation of cadre and fixation of separate seniority were not forthcoming from the records. 15. We have considered the submissions and perused the record. For considering the claim of the State/Sub Inspectors of the Armed Police/Telecommunication Wing with regard to manner of maintenance of seniority list of all Sub Inspectors working in the police department i.e. whether combined seniority list or separate seniority list for Sub Inspectors in Armed Police and separate list of Sub Inspectors working in other wings of the police department as also with regard to the claim of the Sub Inspectors of the Armed Police for being allowed to work in different wings on transfer. Suffice it to say that the Division Bench in LPA No. 28/1972 on the basis of consideration of relevant provisions of the Act and Rules was pleased to hold as under: "...Section 5 of the Police Act provides that the entire police establishment in the general police district shall for the purpose of the act be deemed to be one police force and shall be formally enrolled and shall consists of such members of officer and men shall be constituted in such manner and the members of such forces shall receive such pay as shall from time to time be ordered by the Govt. Rule 172(4) of the Rules lays inter-range. In accordance with this sub rule, the ASIs constabulary Nos. and Head Constables and Constables in each district are borne on the district rolls and are to be given district constabulary Nos. Thus there is no manner of doubt that the police establishment is one though there are various branches or wings thereof such as Criminal Investigation Branch, Anti Corruption Branch and Traffic Branch. Our attention has not been invited to any rule of Govt., order which direct that the KAP which is maintained at Srinagar and Jammu for internal security of the State and is ordinarily used through the State to meet any emergency in the law and order situation is to be treated as a separate range. In absence of such a rule or order we are inclined to think that the KAP is a wing of the Police and that the order of seniority of Head constables and ASIs is to be maintained range wise i.e. Kashmir range and Jammu range and not for every one of its wing...." 16. The stand that the decision of the Division Bench would have been otherwise had Rule 6 been brought to its notice does not merit acceptance since the words used by the Division Bench while concluding that in the absence of any rule or order, KAP was a wing of the Police reflects that Rule 6 was to the notice of the Division Bench. Relevant observations of the Division Bench are reproduced hereunder: "...Our attention has not been invited to any rule of Govt., order which direct that the KAP which is maintained at Srinagar and Jammu for internal security of the State and is ordinarily used through the State to meet any emergency in the law and order situation...." 17. The aforesaid observations of the Division Bench are pari materia with the language used in Rule 6 ...For internal security of the State, a special force called the "Jammu and Kashmir Armed Police" is maintained at Srinagar and Jammu. It is ordinarily used to meet any emergency in the law and order situation throughout the State...." 18. It is therefore apparent that the controversy that the police establishment was one though there were various branches or wings thereof such as Criminal Investigation Branch, Anti Corruption Branch and Traffic Branch stands settled by the decision of the Division bench in LPA No. 28/1972. It is not the stand of the State that the said decision has been reversed or varied. Thus for all intents and purposes the same holds the field as on date. Even otherwise the definition of the term 'General Police District' as given in Section 4 of the Act and the 'Constitution of the force' as given in Section 5 of the Act, Rule 2(2), 6, 23, 123, 172(4) and 271 besides order of the Division Bench dated 17.12.2012 as referred to above as also affidavit dated 13.03.2013 filed in respect thereto as well as the recommendations of the expert committee on Police Reforms of the year 1994 support the view taken in LPA No. 28/1972. 19. However, the question whether the respondents in LPASW No. 153/2003 and the appellants in LPASW No. 184/2009 are entitled to any relief has to be considered in the light of the following: "i. Whether a demand was made by the respondents in LPASW No. 153/2003 and the appellants in LPASW No. 184/2009 to the competent authority for the performance of a duty in terms of Rule 172(4) and if not, the consequences thereof? ii. ii. Whether in the light of claim for inter range seniority in terms of Rule 172(4), the respondents in LPASW No. 153/2003 and the appellants in LPASW No. 184/2009 were under an obligation to implead the parties likely to be affected by change of the existing practice of maintaining separate seniority lists wing wise and as to what would be the consequences of failure to so implead the parties likely to be affected by change of the existing practice of maintaining separate seniority lists wing wise? iii. Whether the claim of respondents in LPASW No. 153/2003 and the appellants in LPASW No. 184/2009 was hit by delay and laches and if so, the consequences thereof?" 20. In respect of point No. (i) above it would be relevant to mention here that the respondents in LPASW No. 153/2003 and the appellants in LPASW No. 184/2009 have not referred to any representation made by them to the competent authority nor attached the same along with the writ petition showing demand having been made for the performance of the duty cast upon the competent authority in terms of Rule 172(4). 21. In Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 the Hon'ble Supreme Court was pleased to hold as under: "21. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justitiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal. 22. Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. 22. Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand." 22. In the instant case, no demand was made by the respondents in LPASW No. 153/2003 and appellants in LPASW No. 184/2009 (although in paragraph No. 5 of SWP No. 307/2006 demand having been made persistently is averred and is not specifically denied in the objections, yet no copy of any representation made has been attached. Had any representation been made, then the same would have been attached and in case of inaction, a writ petition ought to have been filed at the earliest but as is apparent the same was not done and the writ petition was filed after 5-1/2 years of appointment as also of maintaining of seniority lists wing wise) to the competent authority for the performance of the duty in terms of Rule 172(4). In view of the position as noted in the preceding paragraphs, we are of the considered view that the respondents ought to have made a demand to the competent authority highlighting the grounds for accepting the claim for inter range seniority and only on refusal of the same the writ petition ought to have been filed. No doubt it is also settled law that a demand may not be necessary when the same is manifest from the facts of the case, that the same would be an empty formality, or when it is obvious that the opposite party would not consider the demand. However, the same would be subject to the condition that the party approaching the Court directly ought not to have acquiesced in respect of the claim in the writ petition and ought to have approached the Court at the earliest. As is apparent from the facts of the instant case, the respondents were appointed as Sub Inspectors in the Armed Police in 1989 and as per their own showing the respondents were maintaining separate seniority lists for Armed Police and other wings since the beginning as also making promotions on the said basis, however the respondents in LPASW No. 153/2003 chose to file a writ petition only in 1995 i.e. close to 5-1/2 years after their appointment while the appellants in LPASW No. 189/2006 chose to file a writ petition only in 2006 i.e. 8 years after their appointment. In the light of position as noted above we are of the view that although the respondents ought to have approached the competent authority and only in case of demand having been rejected should have approached the High Court and although the stand of the respondents is suggestive that the demand would have been an idle formality, yet on account of delay in approaching the Court as also on account of rights having accrued in favour of third parties as also position with regard to seniority having attained permanence, we are of the view that the respondents are not entitled to the issuance of a writ of Mandamus. Resultant the writ petition ought to have been dismissed on the aforementioned ground. Point No. (i) is answered accordingly. 23. Resultant the writ petition ought to have been dismissed on the aforementioned ground. Point No. (i) is answered accordingly. 23. Qua point No. (ii) we are of the considered view that since the respondents in LPASW No. 153/2003 and the appellants in LPASW No. 184/2009 sought maintaining of seniority in derogation of the existing settled practice since a number of years of maintaining separate seniority lists wing wise and promotions on the basis of the said practice having been made, the Sub Inspectors/Inspectors of the other wings likely to be affected were necessary parties and a writ petition in the absence of the aforesaid persons likely to be affected was not maintainable. Although appellants in LPASW No. 184/2009 had impleaded Inspectors of Armed Police who had been appointed in the Armed Police as Sub Inspectors on the basis of the same selection in which the appellants had been appointed as Sub Inspectors in the same selection in 1998, yet the fact remains that qua respondent Inspectors of the Armed Police impleaded in SWP No. 307/2006 the separate seniority lists, wing wise since the beginning were to the knowledge of the appellants since their appointment in 1998, yet they chose to invoke the writ jurisdiction only in 2006 after the promotions in 2005, therefore the claim is hit by delay and laches. No doubt promotion of non official respondents in LPASW No. 184/2009 in the year 2005 had been challenged in the writ petition, yet the said promotions were the consequences of maintaining of separate seniority lists since the beginning and the writ petition not having been filed earlier, the claim was hit by delay and laches. Reference in this connection can be made to the decision of the Hon'ble Supreme Court in Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610 : "23. It is necessary to keep in mind that a claim for seniority is to be put forth within a reasonable period of time. In this context, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State of T.N. wherein a two-Judge Bench has held thus: (SCC p. 154, para 2) "2. It is necessary to keep in mind that a claim for seniority is to be put forth within a reasonable period of time. In this context, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State of T.N. wherein a two-Judge Bench has held thus: (SCC p. 154, para 2) "2. ...It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters." 24. In Karnataka Power Corpn. Ltd. v. K. Thangappan this Court had held thus that: (SCC p. 325, para 6) "6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the court as pointed out in Durga Prashad v. Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably." 25. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala this Court has opined that: (SCC p. 174, para 26) "26. ...One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum." 26. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum." 26. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy. 27. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time." 24. Likewise, the Hon'ble Supreme Court of India in the State of Rajasthan v. Ucchab Lal Chhanwal, (2014) 1 SCC 144 was pleased to hold as under: "10. ...On a perusal of the writ petition, the order of the writ court and that of the Division Bench we notice that there were specific averments that juniors placed at Serial Numbers 9, 10 and 11 in the gradation list had been promoted vide order dated 20-8-1997. They have not been arrayed as parties. Needless to emphasise, in the event the order passed by the High Court is affirmed, the persons who are seniors to the respondents in the promotional cadre are bound to become junior regard being had to their seniority position in the feeder cadre. It is well settled in law that no order can be passed behind the back of the person that shall adversely affect him. 11. In this context, we may refer with profit to the decision in Vijay Kumar Kaul v. Union of India wherein it has been held thus: (SCC p. 619, para 36) "36. Another aspect needs to be highlighted. 11. In this context, we may refer with profit to the decision in Vijay Kumar Kaul v. Union of India wherein it has been held thus: (SCC p. 619, para 36) "36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant." 12. After so stating this Court referred to the decision in Indu Shekhar Singh v. State of U.P. wherein it has been held thus: (Vijay Kumar Kaul case, SCC p. 620, paras 37-38) "37.... 56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority. (Indu Shekhar Singh case, SCC p. 151, para 56)'" 38. In Public Service Commission v. Mamta Bisht this Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed observed thus: (SCC pp. 207-08, paras 9-10) "9. ...in Udit Narain Singh Malpaharia v. Board of Revenue wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called "CPC") provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Sarguja Transport Service v. State) 10. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Sarguja Transport Service v. State) 10. In Prabodh Verma v. State of U.P. and Tridip Kumar Dingal v. State of W.B., it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.'" 13. In J.S. Yadav v. State of U.P. it has been held as follows: (SCC p. 583, para 31) "31. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice." 14. In the case at hand the dispute relates to promotion which will have impact on inter se seniority. The learned counsel for the respondents assiduously endeavoured to convince us that they are agitating the grievance with regard to their promotion and it has nothing to do with the persons junior to them who had been promoted. Despite the indefatigable effort, we are not persuaded to accept the aforesaid proponement, for once the respondents are promoted, the juniors who have been promoted earlier would become juniors in the promotional cadre, and they being not arrayed as parties to the lis, an adverse order cannot be passed against them as that would go against the basic tenet of the principles of natural justice. On this singular ground the directions issued by the writ court as well as the Division Bench pertaining to grant of promotion to the respondents are quashed...." 25. In the light of the position as noted above we are of the considered view that the Sub Inspectors/Inspectors whose seniority had been maintained in terms of the existing settled practice since a number of years separately wing wise and in view of promotions on the basis of the said practice having been made, were necessary parties and a writ petition in the absence of the aforesaid Sub Inspectors/Inspectors likely to be affected was not maintainable. Resultant the writ petition ought to have been dismissed on the aforementioned ground. Point No. (ii) is answered accordingly. 26. Resultant the writ petition ought to have been dismissed on the aforementioned ground. Point No. (ii) is answered accordingly. 26. Qua point No. (iii) we are of the considered view that the respondents in LPASW No. 153/2003 and the appellants in LPASW No. 184/2009 did not file the writ petition within 3-4 years against non maintaining of common seniority list of different wings of the Police, as against the claim for a common seniority list and of promotions having been made on the basis of the settled practice of maintaining separate seniority lists for Armed Wing and other wings separately, consequentially the writ petitions were hit by delay and laches. 27. The Hon'ble Supreme Court in Shiba Shankar Mohapatra v. State of Orissa, (2010) 12 SCC 471 was pleased to hold as under: "30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation." 28. Thus the writ petitions ought to have been dismissed on grounds of delay and laches. In view of the position as noted above as also in view of the answer to the three points referred to above, we allow LPASW No. 153/2003 and dismiss SWP No. 630/1995 while LPASW No. 184/2009 is dismissed and judgment in SWP No. 307/2006 is upheld. Both LPASW No. 153/2003 and LPASW No. 184/2009 stand decided in aforementioned terms.