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2017 DIGILAW 1273 (GAU)

Paresh Chandra Deka v. State of Assam

2017-09-11

NELSON SAILO

body2017
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. K.N. Choudhury, the learned Senior Counsel for the petitioners as well as Mr. Y. Doley, the learned Additional Advocate General, Assam, appearing for the respondent Nos. 1 and 2. Also heard Ms. V.L. Singh, the learned counsel for the respondent No. 3. Mr. T. Doley, the learned counsel appears for the respondent Nos. 4, 5, 6, 11, 13, 16, 20 and 24. Mr. B.D. Das, the learned Senior Counsel appears on behalf of respondent Nos. 9, 12, 21, 22 and 23. Mr. D.K. Das, the learned counsel appears for the respondent No. 25 and Mr. J. Roy, the learned counsel appears for the respondent Nos. 7, 8, 15, 17, 18, 19 and 26. The brief facts of the case may be narrated at the outset. The petitioner No. 1 was appointed as Assistant Engineer (AE) in the Irrigation Department and after working for about 2 1/2 years he was appointed as AE in the Public Works Departments (PWD) on 21.1.1988. Thereafter, on 03.07.2000, he was promoted to the Assistant Executive Engineer (AEE). The petitioner No. 2 was appointed as AE on 05.10.1987 under regulation for 4(d) of Assam Public Service Commission Regulation (Regulation). His service was regularized on 11.11.1998 as AE, PWD. Thereafter on 03.07.2000, he was promoted to the post of AEE. 2. The petitioner No. 3 was initially appointed as AE in the year 1986 in the Irrigation Department; On 29.02.1988 he was appointed as AE in the PWD with pay protection and thereafter, on 03.07.2000, he was promoted to the post of AEE. The petitioner No. 4 was also appointed as AE under Regulation for 4(d) on 16.09.1986. He was thereafter regularized on 11.01.1988. Consequently, he was promoted to the post of AEE on 03.07.2000. 3. The inter se seniority list of AE under the PWD was published on 06.11.1992 wherein the names of the petitioners appear on Serial Nos. 334, 335 and 336 and 342. The private respondent Nos. 4 to 28 whose names could figure in the said list at that time were all placed below the petitioners. Thereafter, another inter se seniority list of AE was published on 12.03.1999, wherein the petitioners were placed at serial No. 335, 336, 337 and 343. Few of the private respondents whose names figured in the said list were all below the writ petitioners. 4. Thereafter, another inter se seniority list of AE was published on 12.03.1999, wherein the petitioners were placed at serial No. 335, 336, 337 and 343. Few of the private respondents whose names figured in the said list were all below the writ petitioners. 4. In the year 1999, a selection was held for promotion of the engineers from the post of AE to the post of AEE in the PWD. In the said selection, the petitioners as well as all the eligible candidates were considered for promotion and as per the select list published vide notification dated 15.06.1999 (Annexure-III), the petitioners were placed at Serial Nos. 113, 114, 115 and 121 respectively. On the other hand, the private respondents were placed below the writ petitioners. Consequently, the petitioners were all promoted to the post of AEE on 03.07.2000. 5. The respondent authorities on 01.06.2002 published the inter se seniority list of AEE but however, in the said list, the names of the writ petitioners were missing. Thereafter, on 11.01.2005 (Annexure-IV) the inter se seniority list of AEE was published as per the guidelines of the Office Memorandum issued by the Personal (B) Department vide No. ABP 59/96/163 dated 12.03.2002. In the said list, the petitioners were placed at Serial Nos. 215, 216, 217 and 223 respectively. All the private respondents except the respondent No. 12 (Sl. No. 242) were placed above the petitioners. The respondent authorities again on 13.09.2006 (Annexure-V) published the inter se seniority list of AEE wherein, all the private respondents except the respondent No. 12 (Sl. No. 227) again were placed above the writ petitioners. Likewise 2 other inter se seniority lists of AEE were published by the respondent authorities on 5.1.2011 (Annexure-VI) and 08.09.2015 (Annexure-VII) wherein, all the writ petitioners have been placed below the private respondents. 6. According to the writ petitioners they filed objections individually against the inter se seniority list being aggrieved with the fact that persons who were much junior to them were placed above them in the list. Therefore, they prayed for rectification of the inter se seniority list so that they get placed in the correct position vis-à-vis the private respondents. The petitioners have annexed one such objection/representation filed by the petitioner No. 3 on 05.10.2015 (Annexure-VIII) before the respondent No. 2. Therefore, they prayed for rectification of the inter se seniority list so that they get placed in the correct position vis-à-vis the private respondents. The petitioners have annexed one such objection/representation filed by the petitioner No. 3 on 05.10.2015 (Annexure-VIII) before the respondent No. 2. The petitioner No. 3 in his representation contended that his original seniority as per the seniority list dated 12.03.1999 should be restored since the seniority list published after 12.03.1999 does not conform to the Assam Engineering (Public Works) Service Rules, 1978 (the Service Rules). It was further contended that there is no dispute that the reserved category candidates should get their share as per the rules but as there was no provision either in the Service Rules or in any other rules that they are to get the consequential benefit of seniority, two benefits i.e., one in promotion and the other in seniority should not be given to them. It was therefore prayed that the seniority position as on 12.03.1999 should be restored. It may be noticed that the inter se seniority list sought to be rectified by the said objection/representation dated 05.10.2015 was the inter se seniority list of AEEs dated 08.09.2015 and as per the inter se seniority list of AEs dated 12.03.1999 (Annexure-II). 7. That during the relevant time one Sri Chandran Sarma filed WP(C) No. 1019 of 2016 before this Court challenging the placement of the private respondents No. 6 above him in the provisional inter se seniority list dated 08.09.2015. The writ petition was disposed of on 19.02.2016 with a direction to the respondent authorities to dispose the representation dated 05.10.2015 filed by the writ petitioner by way of a speaking order within a period of l(one) month from the date of receipt of a certified copy of the order. It was further provided that until then, the respondent authorities should not process the filling up of the vacant post in the next higher post of the Executive Engineer(EE). 8. The representation of the writ petitioners in WP(C) No. 1019 of 2016 along with the representation filed by the petitioner Nos. 3 and 4 in the instant writ petition was considered by the Commissioner and Special Secretary to the Government of Assam, Public Works Roads Department (Respondent No. 2) by convening a meeting and hearing on 22.03.2016. 8. The representation of the writ petitioners in WP(C) No. 1019 of 2016 along with the representation filed by the petitioner Nos. 3 and 4 in the instant writ petition was considered by the Commissioner and Special Secretary to the Government of Assam, Public Works Roads Department (Respondent No. 2) by convening a meeting and hearing on 22.03.2016. Thereafter, the impugned Speaking Order dated 02.05.2016 (Annexure-X) was passed by the said authority maintaining the seniority position of the incumbents in the inter se seniority list dated 08.09.2015. Being aggrieved, the petitioners are before this Court. 9. Appearing for the writ petitioners Mr. K.N. Choudhury, the learned Senior Counsel, submits that the impugned action of the respondent authorities in changing and fixing the seniority position of the petitioners vis-à-vis the private respondents to their detriment is wholly unjustified and without any authority of law. The same is in violation of Rule 22 of the Service Rules as well as the established principles of service jurisprudence. He submits that it is inconceivable that a person who is much below the petitioners in the select list dated 15.06.1999 could by lapse of time be made senior in the inter se seniority list. Mr. K.N Choudhury submits that Rule 22(1) of the Service Rules provides that the seniority of a member in a cadre appointed by direct recruitment or by promotion shall be determined according to the order of merit in the respective list finally approved by the appointing authority under Sub Rule (6) of Rule 13, Sub Rule (4) of Rule 14 and Sub Rule (1) of Rule 18, if he joins the appointment within 15 days from the date of receipt of the order within the extended period as provided in Rule 19. He therefore submits that since the petitioners as per the select list dated 15.06.1999 were placed above the private respondents, their seniority position in the inter se seniority list of AEE will be above the private respondents. He further submits that the petitioners have rendered more than 16 years of service in the post of AEEs and now when the time has come for consideration of the petitioners for promotion to the next higher post of EE, they would be deprived for such consideration since the Service Rules provide that the candidates to be considered for promotion would be 4 times the number of vacancies. Therefore, considering the vacancies as well as the seniority position of the writ petitioners, the petitioners would surely be deprived from being considered for promotion. He thus submits that the impugned Speaking Order dated 02.05.2016 should be set aside and their impugned inter se seniority list of AEEs published on 08.09.2015 should be rectified by placing the petitioners above the private respondents. 10. Mr. Y. Doloi, the learned Additional Advocate General, Assam, for the State respondents (respondent Nos. 1, 2 and 3) submits that the select list dated 15.06.1999 was modified and canceled vide order dated 23.07.1999 (Anenxure-1 of the counter affidavit) and pursuant to the meeting held by the selection board on 23.07.1999 (Anenxure-2 of the counter affidavit), the select list dated 29.07.1999 (Anenxure-3 of the counter affidavit) was published. He submits that pursuant to the select list dated 29.07.1999, the petitioners were all promoted to the post of AEEs on 03.07.2000. 11. Mr. Y. Doloi further submits that Article 16(4-A) of the Constitution of India was amended by the Constitution (85th Amendment) Act, 2001 w.e.f 17.06.1995 by which Government employee in the reserved category on promotion as per the roster and rules of reservation became entitled to consequential seniority. Accordingly, the State Government issued an Office Memorandum on 12.03.2002 to give effect to the enabling provision of Article 16(4-A). The seniority list published in the year 2000 was therefore prepared afresh and the inter se seniority list of AEEs was published on 01.06.2002. Thereafter, the inter se seniority list was again published on 11.1.2005, 13.9.2006, 05.01.2011 and finally on 08.09.2015. He submits that in the fixation of the inter se seniority of AEEs, the date of promotion as well as the Service Rules have duly been considered. He submits that the private respondents were promoted on 08.10.1999 while the petitioners were promoted only on 03.07.2000. Further, the writ petitioners were promoted against the vacancies of the year 2000 while the private respondents were promoted against the vacancies of 1999 and therefore, as the private respondents having been promoted at least 10 months prior to the writ petitioners, the petitioners cannot claim seniority over the private respondents. Further, the writ petitioners were promoted against the vacancies of the year 2000 while the private respondents were promoted against the vacancies of 1999 and therefore, as the private respondents having been promoted at least 10 months prior to the writ petitioners, the petitioners cannot claim seniority over the private respondents. Moreover, the petitioners having approached this Court belatedly by filing the writ petition, only on 12.05.2016 cannot be permitted to challenge and disturb the inter se seniority list published on 01.06.2002 with a further demand for maintaining the inter se seniority list of AEs dated 12.03.1999 at this stage. 12. Mr. B.D. Das, the learned Senior Counsel appearing for the respondent Nos. 9, 12, 21, 22 and 23 also submits that the writ petition suffers from the delay and laches as well as by the principles of estoppel and waiver. He submits that although the respondents he represents have not filed an affidavit-in-opposition against the writ petition, the interlocutory application i.e. I. A.(C) No. 858 of 2016 filed by them in the writ petition may be treated as their affidavit-in-opposition. He submits that based upon the seniority list dated 13.09.2006, promotions have been made to the next higher post of EE by the respondents authorities on 11.09.2008 by referring to the notification dated 11.09.2008 (Anenxure-9 of I.A.(C) No. 858 of 2016) wherein one Sri Paban Terrang, AEE, amongst others have been promoted to the post of EE although on temporary basis. He, therefore, submits that besides the delay since the list sought to be disturbed by the writ petitioners has already been acted upon, there is no scope of entertaining the writ petition at his stage and the writ petition should be dismissed. 13. Mr. B.D. Das, the learned Senior Counsel further submits that in line with the insertion of the enabling provision in Article 16(4-A) of the Constitution by the Constitution (85th Amendment) Act, 2001 w.e.f 17.06.1995, the State Government issued Office Memorandum dated 12.03.2002 whereby it was provided that upon being promoted as per the reservation of roster point, the promotee shall also be entitled to consequential seniority. Accordingly, the inter se seniority list of the AEEs was prepared and published on 01.06.2002, 11.01.2005, 13.9.2006, 05.01.2011 and on 08.09.2015. Accordingly, the inter se seniority list of the AEEs was prepared and published on 01.06.2002, 11.01.2005, 13.9.2006, 05.01.2011 and on 08.09.2015. The petitioners not only failed to raise their grievance but have not challenged the said Office Memorandum dated 12.03.2002 and therefore, the writ petition cannot be maintained and should be dismissed. He further submits that the decision of the Constitution Bench of the Apex Court rendered in the case of M. Nagaraj & Ors. v. Union of India & Ors. reported in (2006)8 SCC 212 as regards consequential seniority was decided on 19.10.2006 and the application thereof would only be prospective even if the same is to be effected. That the inter se seniority of AEEs sought to be disturbed by the petitioners relates back to 01.06.2002 or 11.01.2005 and as per the inter se seniority list of AEs dated 12.03.1999, there is no question of granting any relief to the writ petitioners at this stage. 14. Mr. J. Roy, the learned counsel for the respondent Nos. 7, 8, 1, 5, 17, 18, 19 and 26 similarly submits that the interlocutory application filed by the respondents concerned i.e. I.A.(C) No. 1220 of 2016 may be considered as the counter affidavit of the respondents concerned. Mr. J. Roy submits that against the inter se seniority list of AEE published vide notification dated 11.01.2005, the writ petitioners did not raise any grievance or submitted any representation. By referring to Paragraph Nos. 5B and 5C of the Interlocutory Application, Mr. J. Roy submits that the private respondents concerned were promoted to the post of AEE on 08.10.1999 i.e., 10 months prior to the promotion of the petitioners on 08.10.1999 and therefore, the private respondents as per the roster or rules of reservation as was published vide Office Memorandum dated 12.03.2002 and came into effect from 17.06.1995. Thereafter, the inter se seniority list of AEEs as per the guidelines was prepared in the year 2002 considering the performance wise promotion of 1999 and 2000. Consequently, the list was published on 01.06.2002 which was followed by another list published on 11.01.2005. He submits that as many as 4 inter se seniority lists have been prepared prior to the issuance of the seniority list dated 08.09.2015 within on span of over 10 years. Therefore, the seniority position at this stage cannot be disturbed. Consequently, the list was published on 01.06.2002 which was followed by another list published on 11.01.2005. He submits that as many as 4 inter se seniority lists have been prepared prior to the issuance of the seniority list dated 08.09.2015 within on span of over 10 years. Therefore, the seniority position at this stage cannot be disturbed. He submits that assuming but not admitting that the writ petitioners are aggrieved by the various notification published by the State respondents, they ought to have challenged such notifications 14 years ago and not at this stage. Therefore, the petitioners being fully aware of the situation cannot be promoted to unsettle the settled position at their convenience. 15. Mr. D.K. Das, the learned counsel for the respondent No. 25 also adopts similar lines of arguments. He submits that as the respondent No. 25 has not filed an affidavit-in-opposition, I. A.(C) No. 716 of 2015 may be taken as the counter affidavit of the said respondent. He submits that the writ petition suffers from delay and laches and the rights that have accrued to the respondents concerned being an accrued right cannot be disturbed at this stage. He also questions as to whether the decision rendered by the Apex Court in the case of M. Nagaraj (Supra) can give the petitioners any benefit. By referring to paragraph Nos. 117 and 119 of the decision, he submits that reservation as it has not been interfered with by the Apex Court. The challenge made in the referred case was not on the reservation but only with regard to the extent of reservation. He therefore submits that the grievances projected by the writ petitioners are only stale and without any subsistence. 16. Mr. T. Doley, the learned counsel for the respondent Nos. 4, 5, 6, 11, 13, 16, 20 and 24 adopts the arguments advanced by the leaned counsel for the other respondents by submitting that the writ petition cannot be entertained on the grounds of delay and laches and on the principles of estoppels and waiver. He submits that even on merits since the inter se seniority list has been fixed as per the existing guidelines at the relevant time, the writ petitioner did not have the right to challenge the same at this stage. 17. Besides the above respondents, respondent Nos. 3, 10, 14, 27 and 28 have not filed any pleadings. 18. Mr. He submits that even on merits since the inter se seniority list has been fixed as per the existing guidelines at the relevant time, the writ petitioner did not have the right to challenge the same at this stage. 17. Besides the above respondents, respondent Nos. 3, 10, 14, 27 and 28 have not filed any pleadings. 18. Mr. K.N. Choudhury, the learned Senior Counsel for the petitioners submits that in response to the submissions made by the learned counsel for the respondents that seniority of the writ petitioners vis-à-vis the private respondents only became adverse with the publication of the seniority list dated 08.09.2015 as it was only settled with the passing of the speaking order on 02.05.2016 by the Commissioner and Special Secretary to the Government of Assam, Public Works (Roads) Department. He also denies that any promotion has been made pursuant to the earlier provisional inter se seniority list. In so far as delay is concerned, he submits that when the question as regards the delay is being considered, the factor to be considered is the laches and not the delay. He submits that limitation as in application in a writ petition under Article 226 of the Constitution of India and even if delay has been alleged, there is no lower limit or upper limit for such delay. The facts and circumstances in each case will have to be considered if the question of delay is to be considered. The learned Senior Counsel therefore submits that considering the fact that the grievances of the petitioners were being considered as late as in the month of May, 2016, with the passing of the speaking order, there is no question of attributing delay on the part of the writ petitioners. Considering the arbitrary action of the State respondents, he submits that the seniority position of the petitioners vis-à-vis the private respondents have to be restored by this Court by passing suitable directions to the respondents. 19. In support of their case, the learned counsels for the parties have referred to the following decisions: (i) M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212 (ii) Bhogeswar Saikia & Ors v. State of Assam & Ors. 2010 (3) GUI 377 (iii) Union of India & Ors v. Tarsem Singh {2008) 8 SCC 648 (iv) Manjul Srivastava v. Government of Uttar Pradesh & Ors. v. Union of India & Ors. (2006) 8 SCC 212 (ii) Bhogeswar Saikia & Ors v. State of Assam & Ors. 2010 (3) GUI 377 (iii) Union of India & Ors v. Tarsem Singh {2008) 8 SCC 648 (iv) Manjul Srivastava v. Government of Uttar Pradesh & Ors. (2008) 8 SCC 652 (v) State of U.P. & Anr. v. Synthetics and Chemicals Ltd. & Anr. (1991) 4 SCC 139 (vi) S. Panneer Selvam & Ors. v. State of Tamil Nadu & Ors. (2015) 10 SCC 292 (vii) Equality Forum & Anr. v. State of Assam & Ors. 2016 (I) GLT 710 (viii) Uttar Pradesh Power Corporation Limited v. Rajesh Kumar & Ors. (2012) 7 SCC 1 (ix) Ajit Singh & Ors. v. State of Punjab & Ors. (1999) 7 SCC 209 (x) Ram Prasad & Ors. v. D.K. Vijay & Ors. (1999) 7 SCC 251 (xi) Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors. (2011) 1 SCC 467 (xii) Union of India & Ors. v. Virpall Singh Chauhan & Ors. (1995) 6 SCC 684 (xiii) SC & ST Officers Welfare Council v. State of UP & Anr. (1997) 1 SCC 701 (xiv) Ramchandra Shankar Deodhar & Ors. v. The State of Maharashtra & Ors. (1974) 1 SCC 317 (xv) M/s. Tilokchand & Motichand & Ors. v. KB. Munshi &Anr. 1969(1) SCC 110 (xvi) K.R. Mudgal & Ors. v. R.P. Singh & Ors. (1986) 4 SCC 531 (xvii) Sudhir Vishnu Panvalkar v. Bank of India (1997) 6 SCC 271 (xviii) R.S. Makashi & Ors. v. I.M. Menon & Ors. (1982) 1 SCC 379 (xix) New Delhi Municipal Council v. Pan Singh & Ors. (2007) 9 SCC 278 (xx) Union of India & Ors. v. Tarsem Singh (2008) 8 SCC 648 (xi) Rohtas Bhankhar v. Union of India (2014) 8 SCC 872 (xii) S.V. Joshi & Ors. v. State of Karnataka & Ors. (2012) 7 SCC 41 (xiii) Chairman & Managing Director Central Bank of India v. Central Bank of India SC/ST Employees Welfare Association. (xiv) Civil Appeal No. 2368 of 2011 BK Pavitra & Ors. v. Union of India & Ors. Supreme Court (xv) Civil Writ Petition No. 13491 of 2009 (Rajasthan High Court) Captain Gurvinder Singh & Ors. v. State of Rajasthan (xvi) Civil Writ Petition No. 1645 of 2016 (Rajasthan High Court) Captain Gurvinder Singh (Retd.) v. State of Rajasthan. 20. (xiv) Civil Appeal No. 2368 of 2011 BK Pavitra & Ors. v. Union of India & Ors. Supreme Court (xv) Civil Writ Petition No. 13491 of 2009 (Rajasthan High Court) Captain Gurvinder Singh & Ors. v. State of Rajasthan (xvi) Civil Writ Petition No. 1645 of 2016 (Rajasthan High Court) Captain Gurvinder Singh (Retd.) v. State of Rajasthan. 20. Not all of the above decisions cited by the parties except few of them are being discussed as it is considered unnecessary considering the controversy to be decided. From what has been pleaded by the rival parties, points to be decided are:- (i) whether the seniority of the private respondents can be maintained considering the procedure adopted for fixation of the seniority and (ii) Whether the claim of the petitioners for rectification of the inter se seniority list in the post of AEEs can be restored to the position they were holding in the post of AE prior to their promotion to the post of AEE. 21. In the case of M. Nagaraj (Supra), a challenge was made before the Apex Court for quashing the Constitution (85th Amendment) Act, 2001 inserting Article 16(4-A) of the Constitution retrospectively from 17.06.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. The Apex Court has held that the impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain controlling factors or the compelling reasons, namely, backwardness, inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. The amendments are confined only to STs and SCs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC one hand and STs and SCs on the other hand as was held in Indra Sawhney & Others v. Union of India, the concept of post based roster with inbuilt concept of replacement as was held in RK Sabharwal (Supra). It was, therefore, reiterated that the ceiling limit of 50% the concept creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. It was, therefore, reiterated that the ceiling limit of 50% the concept creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. Therefore, the main issue was with regard to extent of reservation and for which the State concerned will have to show in each case the existence of the compelling reasons before making provisions for reservation. Since the provision is an enabling provision, the State is not bound to make reservation in matters of promotion but if it is exercised, the State will have to collect quantifiable data showing backwardness of the class and inadequacy of representation of the class in public employment in addition to compliance of the Article 335. 22. In the case of Bhogeswar Saikia & Ors. (Supra), consequent upon the amendment of the Article 16(4-A) of the Constitution of India by the Constitution (85th Amendment) Act, 2001, the State Government issued an Office Memorandum dated 12.3.02 by which it was provided that the Schedule Caste and Schedule Tribes Government servants shall on their promotion by virtue of rule of reservation/roster will be entitled to consequential seniority with effect from 17.6.95, the same was put to challenge before this Court. The learned Single Judge by referring to the case of Indra Sawhney (Supra) held that it was within the competence of the State Government to prescribe the service of its employees by an executive order in absence of the rules made in the proviso 309 of the Constitution. Since Article 16(4-A) enable the State to make provision for reservation with consequential seniority, said provision can be laid down by the office memorandum as was done by the Office Memorandum dated 12.03.2002. Hence, the same was held to be sustainable in law. 23. In the case of Rohtas Bhankhar (Supra), the Apex Court examined the case of S. Vinod Kumar & Anr. v. Union of India & Ors. (1996) 6 SCC 580 wherein by relying upon Indra Sawhney (Supra), it was held that provision for lower qualifying marks/standard of evaluation (relaxation) was not permissible under Article 16(4) of the Constitution of India in view of Article 335. v. Union of India & Ors. (1996) 6 SCC 580 wherein by relying upon Indra Sawhney (Supra), it was held that provision for lower qualifying marks/standard of evaluation (relaxation) was not permissible under Article 16(4) of the Constitution of India in view of Article 335. However, the Apex Court held that Court failed to consider Article 16(4-A) and that it was inserted to undo the observations made in the case of in Indra Sawhney (Supra). Therefore, instead of remanding the matter back to the Central Administrative Tribunal who had applied the case of S. Vinod Kumar (Supra), relief of relaxation was given to the appellants. 24. In the case of State of UP v. Synthetics and Chemicals Ltd. (Supra), the Apex Court has held that a decision which is not expressed and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution of India. Any declaration of conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. 25. In the case of S. Panneer Selvam & Ors. (Supra) it has been held by the Apex Court that in the absence of any rule conferring on seniority the catch-up rule of seniority will prevail. The concept of 'catch-up rule' and 'consequential seniority' is judicial evolved concepts to control the extent of reservation. The jurisdiction of the Apex Court in the case of Indra Sawhney (Supra) was that the reservation under Article 16(4) of the Constitution of India is confined only to the initial appointment and cannot extend to reservation in the matter of promotion. In order to nullify the effect of the aforesaid decision, an amendment was made to Article 16 of the Constitution (77th Amendment) Act, 1995 with effect from 17.06.1995, whereby, Article 16(4-A) was inserted in Article 16 of the Constitution. Therefore, unless there was any provision for consequential seniority provided in the rules, the catch-up rule will apply and the general candidates although permitted subsequent to the reservation category candidate on promotion will regain their seniority. 26. In the case of B.K. Pavitra & Ors. Therefore, unless there was any provision for consequential seniority provided in the rules, the catch-up rule will apply and the general candidates although permitted subsequent to the reservation category candidate on promotion will regain their seniority. 26. In the case of B.K. Pavitra & Ors. the Apex Court vide its judgment dated 9.2.2017 held that the determination of inadequacy of representation, backwardness and overall efficiency was held to be a must for exercise of power under Article 16(4-A) and therefore, in the absence of such exercise, the catch-up rule would apply. 27. In the case of Equality Forum &Anr. (Supra) which was decided on 23.12.2015, the rules laid down by the Apex Court in the case of M. Nagaraj (Supra) was adopted. The One Man Commission was given the task of studying and acquiring quantifiable data and to submit its report before the State cabinet. The One Man Commission having failed to justify the need to have reservation in promotion with a help of quantifiable data was held to be of no consequence to enable the State to give effect the provision of 1978 Act which was amended by the Amendment Act, 2012, i.e. The Assam Schedule Castes & Schedule Tribes (Reservation of Vacancies in Services & Posts) Act, 1978. 33. 28. In the case of Tarsem Singh (Supra) it was held by the Apex Court that if reopening of the issue would affect the settled rights of third parties, then the claim cannot be entertained and therefore, belated claim would have to be rejected on the ground of delay and laches. 29. In the case of K.R. Mudgal (Supra), the Apex Court has held that the delay in challenging the seniority would be fetal and any person who feels aggrieved by the seniority assigned to him should approach the Court as early as possible. Similar was the view of the Apex Court in the case of Sudhir Vishnu Palvak (Supra). In that case the delay of 3 1/2 years of seeking reinstatement after being acquitted from a criminal Court was held to be rightly rejected by the Division Bench of the High Court. In the case of R.S. Makashi and Others (Supra), the delay in making a challenge against the seniority position was held to be a valid ground for not extending discretional relief by the Court. In the case of R.S. Makashi and Others (Supra), the delay in making a challenge against the seniority position was held to be a valid ground for not extending discretional relief by the Court. In that case a challenge was made to the principles of seniority contended in the Government resolution and the consequent gradation list after 8 years of passing of the resolution and to unsettle the seniority position would disrupt the vested rights of the 3rd parties. Therefore, the preliminary objection of the writ petition on the ground of laches and delay raised by the respondents before the High Court was interfered with by the Apex Court. In the case of M/s. Tilokchand & Motichand (Supra) the Apex Court has held that the question of delay is a question which is at the discretion of the Court and would have to be considered from case to case. There is no lower limit or upper limit prescribed in an application made under Article 32 of the Constitution of India. It will all depend on what bridge of the fundamental right and the remedy claimed which, when and how the delay arose. Similarly, in the case of Ramchandra Shankar Deodhar (Supra), the Apex Court held that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on exercise of sound and proper discretion and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. 30. In the case of New Delhi Municipal Council (Supra) the Apex Court held that although there is no period of limitation prescribed for filling of the writ petition, originally the writ petition should be filed within a reasonable time and therefore, it held that discretionary jurisdiction under Article 226 may not be exercised in favour of those who approached the Court after a long time. Likewise, in the case of Union of India v. Tarsem Singh (Supra), the Apex Court held that delay in seeking the relief from the Court by the affected party would be fatal especially when third party rights are affected. 31. Mr. Likewise, in the case of Union of India v. Tarsem Singh (Supra), the Apex Court held that delay in seeking the relief from the Court by the affected party would be fatal especially when third party rights are affected. 31. Mr. KN Choudhury, the learned Senior Counsel for the petitioners in this connection has relied upon the decision of the Apex Court in the case of M/s. Tilokchand & Motichand & Ors. (Supra) by submitting that it is the discretion of the Court on what to follow depending from case to case. He submits that there is no lower limit or upper limit to move the Court and it will depend on what the breach of the Fundamental Right and the remedy claimed are and when and how the delay arose. The learned Senior Counsel further relies upon the case of Ramchandra Shankar Deodhar & Ors. (Supra) to contend that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. 32. It may be noticed that Article 16(4- A) of the Constitution of India introduced with the 77th Amendment Act, 1995 whereby the State has been empowered to make provisions for reservation in matters of promotion with consequential seniority. The State Government therefore with the amendment in the constitution issued an office memorandum dated 12.03.2002 whereby it was provided that Schedule Castes/Schedule Tribes Government servant shall on their promotion by virtue rule of reservations/roster be entitled to consequential seniority also and the above decision shall be effective from 17.05.1995. A perusal of the inter se seniority list published on 01.06.2002 indicates that the Office Memorandum dated 12.03.2002 was the criteria adopted for fixing seniority. Likewise, the inter se seniority list published on 11.01.2005 was also based upon the said Office Memorandum. Although the petitioners are aggrieved with their placement in the inter se seniority list dated 01.06.2002, 11.01.2005 and the 3 subsequent inter se seniority list published thereafter including 08.09.2010 seniority list, they have not challenged the Office Memorandum dated 12.03.2002. 33. Likewise, the inter se seniority list published on 11.01.2005 was also based upon the said Office Memorandum. Although the petitioners are aggrieved with their placement in the inter se seniority list dated 01.06.2002, 11.01.2005 and the 3 subsequent inter se seniority list published thereafter including 08.09.2010 seniority list, they have not challenged the Office Memorandum dated 12.03.2002. 33. The Apex Court in the case of M. Nagaraj (Supra) has held that before effecting the provision of Article 16(4-A) of the Constitution of India, 3 key factors i.e. backwardness, inadequacy or representation and overall efficiency as provided by Article 335 of the Constitution of India has to be fulfilled, the same with utmost respect being a decision taken on 19.10.2016 will have to be applied only prospectively. As may be noticed, Office Memorandum dated 12.03.2002 was the criteria adopted for fixing the inter se seniority at the relevant time. The petitioners however have only approached this Court on 12.05.2016 while the claim they have projected is from the publication of the inter se seniority list in the lower post of AE dated 12.03.1999 and their merit position in the select list dated 15.06.1999 for promotion from the post of AE to the post of AEE. As may be noticed, a series of inter se seniority lists have also been published since then. The writ petitioners were promoted to the post of AEE on 03.07.2000 while then private respondents were promoted on 08.10.1999. Although the respondents have contended that the writ petitioners were promoted against the vacancies of the year 2000 while the private respondents were promoted against the vacancies of 1999, there is no material available to show year wise division of the vacancies. 34. However, considering the facts and circumstances of the case in its entirety, I do not find it to be a fit case for Court's interference as I find that the petitioners on account of delay and laches have waived their right to agitate their case and therefore, cannot be permitted to unsettle the settled position at this stage. Further as the Office Memorandum dated 12.03.2002 by which inter se seniority was determined as far back as on 01.06.2002 or even on 11.01.2005 having not been challenged, examination of the criteria for fixation of inter se seniority under the facts and circumstances is found to be unnecessary. Further as the Office Memorandum dated 12.03.2002 by which inter se seniority was determined as far back as on 01.06.2002 or even on 11.01.2005 having not been challenged, examination of the criteria for fixation of inter se seniority under the facts and circumstances is found to be unnecessary. In the result, the writ petition fails and the same is dismissed. The interim order passed earlier also stands merged with this order.