B. N. CHATURVEDI ( 1 ) INSTANT Letters Patent Appeals No. 30/1999, 31/99 and 64/99 arise out of a common judgment dated 9th of November, 1998 of the learned Single Judge in Civil writs No. 1939 of 1988 and 1152/1988 filed by Shri Rajinderpal Singh Lamba and shri V. K. Garg respectively allowing the same in the following terms: "13. It is hereby declared that the petitioners are deemed to have been promoted as udcs w. e. f. 1. 1. 1976 and that shall be the basis on which their claims for future promotions in the ladder of servlce would be considered by respondents 2 and 3. To the extent indicated above, the writ petition is allowed. "14 The respondents 2 and 3 shall give the benefit of this judgment to the other similarly situated persons like the petitioners, who had become graduates before 1. 1. 1976. " "15. There shall be no order as to costs. " ( 2 ) IN LPA No. 30/99 the appellants S/shri Suraj Bhan and radhn Krishan aseall the impugned judgment and seek reversal0 thereof. In LPA Nos. 31/99 and 64/99 respective appellants namely, S/shri Rajinderpal Sinah Lamba and Shri V. K. Garg seek modification of the impugned judgment and grant of reliefs to the following effect: lpa No. 31/99 ". . . . . . . . . . . . . . . . . . . . . . TO modify the order dated 09. 11. 1998 passed by the Ld. Single judge in CWP No. 1939/1988 to the extent that the appellant will also be entitled to the arrears of salary and other monetary benefits as admissible on account of his deemed promotion to the cadre of Upper Division Clerk w. e. f. 01. 01. 1976 and also to the cadres of higher Promotion in the ladder to the post of assistant and above to which he may be found promoted on account of the re-fixation of his seniority in the cadre of U. D. Cs, Assistants and the like. "lpa No. 64/99 ". . . . . . . . . . . . . . . . . . . . . . . . . TO modify the order dated 9. 11. "lpa No. 64/99 ". . . . . . . . . . . . . . . . . . . . . . . . . TO modify the order dated 9. 11. 1998 passed by the learned Single judge in the Civil writ Petition No. 1152/1988 and to order that the appellant will also be entitled to the arrears of salary and other monetary benefits on account of his deemed promotion to the cadre of Upper Division Clerk w. e. f. 1. 1. 1976 and also to the cadres of assistants and above, to which he may be found promoted on account of the re-fixation of his seniority in the cadre of UDCs, Assistants, etc. "since all the three LPAs involve inter-related issues, the same are being dealt with and disposed of by a composite order. As the decision of LPAs No. 31/99 and 64/99 is wholly dependent on the final outcome of LPA No. 30/99, the same is being taken up first. LPA N0. 30 OF 1999 ( 3 ) S/shri Rajinderpal Singh Lamba and V. K. Garg were appointed as Lower Division Clerks on 1. 10. 1972 and 24. 11. 1969 respectively, consequent upon their appointments in that capacity in the Ministerial Establishment of the District and sessions Judge, Delhi. Shri Rajinderpal Singh Lamba graduated from Delhi University in 1975 while Shri V. K. Garg did his graduation from the same very University in the year 1974. According to them, after their graduation and two years experience in the office work, they became entitled to be considered for promotion from the cadre of Lower Division clerks to the higher grade of Upper Division Clerks (for short,"ldcs and UDCs") on the due dates when the permanent vacancies in the cadre of UDCs occurred in the year 1975 or thereabout, by virtue of rule of rotation as contained in Rule vi, Chapter 18-A of the Punjab High Court Rules and Orders (Vol. 1) framed under Section 35 (3) of the Punjab Courts Act (referred to as rule/rules hereafter ). This, however, did not happen. ( 4 ) S/shri Rajinderpal Singh Lamba and V. K. Garg submitted their respective applications dated 24. 12. 1986 and 2. 1. 1987 to the District and Sessions Judge, Delhi (Respondent no. 1) framed under Section 35 (3) of the Punjab Courts Act (referred to as rule/rules hereafter ). This, however, did not happen. ( 4 ) S/shri Rajinderpal Singh Lamba and V. K. Garg submitted their respective applications dated 24. 12. 1986 and 2. 1. 1987 to the District and Sessions Judge, Delhi (Respondent no. 4) seeking their promotion to the posts of UDC under the said Rule from the due dates when, according to them, permanent vacancies in the cadre of UDCs occurred in the year 1975. Their applications, however, did not find favour with the District and Sessions Judge, Delhi, respondent no. 4, and the same were rejected on different dates in January, 1987. Thereupon, they made service appeals to the High Court of delhi, Respondent No. 3, which were entrusted to D. P. wadhwa, j. (as his Lordship then was) on the Administrative Side for hearing and report. Two other graduate LDCs had also filed similar appeals which were also entrusted to D. P. wadhwa, J. Non-graduate LDCs too made their representations against the said service appeals. D. P. wadhwa, J. after hearing the graduate and non-graduate LDCs and persuing the relevant records, made his report dated 2. 3. 1988. The conclusion part of that report reads thus:- " I would, therefore, allow these appeals and would hold that the appellants are entitled to be considered for promotion to the grade of UDC by selection on merit out of graduates as provided in Rule VI referred above. This would, however, not mean reversion of any officer presently working as UDC whether graduate or non-graduate. The promotion of the appellants, if any, will, therefore, be prospective only. " ( 5 ) AGGRIEVED by the aforesaid report and denial of promotion and other service benefits with retrospective effect, as sought by them, S/shri Rajinderpal Singh Lamba and v. K. Garg approached this Court on Judicial Side with separate writ petitions No. 1939/88 and 1152/88, which were decided by means of impugned judgment. ( 6 ) CONSEQUENT upon report dated 2. 3. 1988 of D. P. Wadhwa, j. S/shri V. K. Garg and Rajinderpal Singh Lamba were promoted as UDCs with effect from 1. 4. 1988 and 30. 1. 1992 respectively. According to the Delhi High Court and District and Sessions Judge, Delhi, Respondents 3 and 4, the said promotions were made prospectively in pursuance of the report dated 2. 3. 3. 1988 of D. P. Wadhwa, j. S/shri V. K. Garg and Rajinderpal Singh Lamba were promoted as UDCs with effect from 1. 4. 1988 and 30. 1. 1992 respectively. According to the Delhi High Court and District and Sessions Judge, Delhi, Respondents 3 and 4, the said promotions were made prospectively in pursuance of the report dated 2. 3. 1988 of D. P. Wadhwa, J. In their counter affidavits to the writ petitions before the Learned Single judge, respondents 3 and 4 pleaded that the Graduate LDCs including S/shri Rajinderpal Singh Lamba and V. K. Garg had agitated their right of promotion at a very belated stage and promotions to them with retrospective effect would have resulted in reversion of number of non-graduate employees who had been promoted as UDCs during the period 1974 to 1988. Now, in compliance with the directions issued by way of the impugned Judgment, the respondent no. 1 and Shri V. K. Garg have been promoted with retrospective effect from 1976 vide order dated 29. 4. 1999 of the respondent no. 4 and their seniority alongwith that of others similarly situated graduate ldcs, is in the process of being refixed. The exercise relating to such refixation of seniority spans over a period of about 30 years, as disclosed in the counter affidavit of respodent no. 4, filed in, the course of contempt proceedings. ( 7 ) WE have heard the learned counsels for the respective parties and perused the record. ( 8 ) MANIFOLD pleas were advanced on behalf of appellants to question the correctness of the impugned judgment. Firstly, it was contended that though Shri Rajinderpal Singh lamba, Respondent no. 1 and Shri V. K. Garg had graduated in the years 1975 and 1974 respectively, the representations on their behalf for promotion to the post of UDC, with retrospective effect, were made in the year 1986 and 1987 only, after lapse of a period of about 11/12 years. Filing of writ petitions, it was pleaded, after such an inordinate delay rendered them disentitled to seek promotion with retrospective effect as their claim was barred by laches. Secondly, it was argued that Section 35 (3) of the Punjab Courts Act, 1918 under which. Filing of writ petitions, it was pleaded, after such an inordinate delay rendered them disentitled to seek promotion with retrospective effect as their claim was barred by laches. Secondly, it was argued that Section 35 (3) of the Punjab Courts Act, 1918 under which. Rule VI, was framed stood repealed by the Government of india (Adaptation of Indian Laws) order 1937 and as a result the said rule ceased to exist and thus that rule was no longer available to the Graduate LDCs to seek promotion thereunder by applying the rule of rotation. Thirdly, it was convassed that as the rule of rotation was not acted upon and the promotions were being made on the basis of length of service only since very beginning, rota rule has broken down and consequently the promotions have necessarily to be made on the basis of length of service. It was contended that the learned Single Judge erred in directing deemed promotion of S/shri Rajinderpal singh Lamba and V. K. Garg from,1976 as it does not lie within the jurisdiction of the court to issue such a direction and at best only consideration of their candidature for promotion in accordance with the rules, subject to vacancy position, could have been ordered. In any case , it is asserted, the benefit of the impugned judgment could not have been directed to be extended to the other similarly situated persons like S/shri rajinderpal Singh Lamba and V. K. Garg, who had become graduates before 1. 1. 1976, as no person, other than S/shri rajinderpal Singh Lamba and V. K. Garg, ever approached the court and the court thus could not come to the aid of such persons, who did not seek to agitate their rights and acquiesced their prevailing position. Fourthly, it was submitted that even if the rule of rotation as contained in rule VI is held applicable, the same is ultra-vires being violative of Articles 14 and 16 of the Constitution of India. It was added that qualification for LDC and UDC is the same and the graduate and non-graduate LDCs and UDCs perform the same duties and thus there is no reason to carve out certain vacancies to be filled-up by graduates only. Lastly, it was urged that the present appeal is barred by res judicata. It was added that qualification for LDC and UDC is the same and the graduate and non-graduate LDCs and UDCs perform the same duties and thus there is no reason to carve out certain vacancies to be filled-up by graduates only. Lastly, it was urged that the present appeal is barred by res judicata. ( 9 ) TAKING a cue from the judgment in question, countering the plea of latches, raised by the appellants, it was submitted on behalf of Shri Rajinderpal Singh Lamba, respondent no. 1 that as the promotions under the rules constitute conditions of recruitment, the same are mandatory and respondent no. 4 was thus obliged to consider his case for promotion in accordance with the rules and he could not be made to suffer due to the wrong committed by the employer (Respondent No. 4 ). It was pleaded that the respondent had to exhaust his remedies available under the rules before approaching the court and that cause of action accrued to him only after his. service appeal:,had been decided by D. P. Wadhwa, J. on 2/03/1988. Shri N. L. Bareja, learned counsel for the respondent no. 1 pointed out that the plea of latches has appropriately been dealt with by the learned single Judge in the impugned judgment and moreover, he contended, the plea of delay or latches was never raised before the learned Single Judge on behalf of the appellants and only respondents 3 and 4 had agitated this point and after the decision of the learned Single Judge on this aspect, the same having not been challenged by the said respondents, the same is not available to be raised now by the appellants. Regarding appellant s plea pertaining to inapplicability of rule VI, it was asserted on behalf of the respondents 3 and 4 that the same continued to be applicable notwithstanding repeal of Section 35 (3) of the Punjab Courts Act whereunder the same had been framed. On behalf of respondent no. 1 it was argued that the appellants having earlier omitted to raise the plea against the applicability of the rule in question, it is not open to them now to come up for the first time with a plea in that respect in the course of this appeal. On behalf of respondent no. 1 it was argued that the appellants having earlier omitted to raise the plea against the applicability of the rule in question, it is not open to them now to come up for the first time with a plea in that respect in the course of this appeal. It was further submitted that the Government can provide for higher qualification in the rules for granting promotion and a classification based on higher educational qualification is a. reasonable one and cannot be termed as violative of Articles 14 and 16 of the Constitution of India. Defending the impugned judgment granting deemed promotion, with retrospective effect, it was maintained on behalf of respondent no. 1 that the court was quite competent to do so and the impugned decision is, therefore, not liable to be interfered with on this score. As the Cwp. 1939/88 and Cwp No. 1152/88, were heard and decided together by a common judgment, and as the appeal has been filed against the decision in Cwp No. 1939/88 only and not against the one in Cwp No. 1152/88, present appeal is pleaded to be barred by res judicata. ( 10 ) IN the context of plea relating to delay and laches, raised by the appellants, one may first take note of the basis on which the same was not accepted by the learned Single judge. A decision of Madras High Court in M. Viswanathan Vs. Government of Tamil Nadu and Others, 1989 LAB 1c 1567 appears to have pursuaded the learned Single Judge to negative the said plea. The relevant part of the decision, as extracted in the impugned judgment, may be reproduced for better understanding of the reasoning : "promotion or a legitimate right to which an employee is entitled ought to have been given to the employee even without asking. The qualification and other particulars of an employee are entered in his Service Register. Whenever vacancies arise, it is the duty of the authorities to consider the persons who are qualified for those posts and who are eligible for promotion. Merely because relevant entries regarding the petitioner s qualification have been made on 26. 1. 1977, it does not mean that the petitioner has lost his right of promotion. The Service register is maintained in the School itself and the School is inspected by the authorities concerned. Merely because relevant entries regarding the petitioner s qualification have been made on 26. 1. 1977, it does not mean that the petitioner has lost his right of promotion. The Service register is maintained in the School itself and the School is inspected by the authorities concerned. Therefore, it cannot be said that the entries in the Service Register had escaped the notice of the authorities. Therefore, when the petitioner s statement that the authorities were fully aware of the petitioner to be promoted, cannot be brushed aside as unreasonable or untenable. It is for the authorities to take steps for considering the qualified persons for the suitable post as and when vacancies arise. It is not for employee to apply for the same. So the contention raised on behalf of the respondents that the petitioner had kept silent for nearly 11 years is not acceptable and the same is not a ground to reject the justifiable request to promote to the post for which he had been qualified when it had fallen vacant. " ( 11 ) THE learned Single Judge concluded that Rule VI being part of statutory rules, non-action on the part of respondent no. 4 in compliance therewith, was in violation of the said rule and non-consideration of respondent no. 1 and Shri V. K. Garg for promotion to the post of UDC in 1975/1976 amounted to affecting their service conditions and came within the mischief of Articles 14 and 16 of the Constitution of India. Following the decision in M. Vishwanathan s Case (supra) the learned Single Judge held the view that in a case as the present one, it was not obligatory on the part of the respondent no. 1 or Shri V. K. Garg to have challenged the aforesaid non-action on the part of respondent no. 4 by making any representation or petition to the court against their non-promotion on the due dates when the vacancies in the post of UDCs had, according to them, occured and in that sense of the matter he appears to favour the view that time factor is immaterial to agitate the issue. ( 12 ) TO stress the point that respondent no. 4 was obliged to accord automatic consideration for promotion to the respondent no. ( 12 ) TO stress the point that respondent no. 4 was obliged to accord automatic consideration for promotion to the respondent no. 1 and Shri V. K. Garg in accordance with Rule VI and that they cannot be made to suffer due to non-action on the part of respondent no. 4, by omitting to consider them for promotion, as the promotion under that rule constituted conditions of recruitment and thus mandatory, apart from M. Vishwanathan (supra), decisions in Joginde Singh Vs. State of Punjab and Others; SLR 1981 (2) Punjab and Haryana page 792; syed Khalil Rizivi and Ors. Vs. Union of India and Ors. . JT 1992 (Suppl) SC 169: Keshav Chandra Joshi and. Ors. vs Union of india and Ors. . 1992 Suppl (l) SCC 272; A. K. Bhatnagar and Ors. Vs. Union of India and Ors. . (1991) 1 SCC 544 ; B. S. Minhas vs. Indian Statistical Institute and Ors. , 1984 (1) SLJ page 217 (SC ) and Sukhdev Singh and Ors. Vs. Bhagat Ram Sardar Singh, raghunath Bansi and Anr,etc AIR 1975 SC 1331 were referred to. ( 13 ) IT is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. There is no gainsaying that the rule of recruitment/promotion, wherever they exist, are meant to be scrupulously adhered to by the authorities concerned and Rule VI is no exception to it. In the context of plea of delay or laches, however, it is not the adherence or otherwise to the said Rule III, which is relevant, it is rather the effect of non-observance of that rule which needs to be examined. Admittedly, the respondent no. 4 in pursuance of rule of rotation, as embodied in Rule VI, did not consider the respondent no. 1 and Shri V. K. Garg for promotion to the post of UDC on the due dates when the vacancies in that post arose. The respondent no. 1 and Shri V. K. Garg, both, in spite of their names not being considered for the promotion, kept quiet until 1986/1987 and did not agitate the issue by making representations to the respondent no. 4. It was only in the year 1986 and 1987 that the respondent no. 1 and Shri V. K. Garg respectively made their representations to the respondent no. 4. It was only in the year 1986 and 1987 that the respondent no. 1 and Shri V. K. Garg respectively made their representations to the respondent no. 4, which were, however, rejected in January, 1987. Immediately, thereafter, the respondent no. 1 and Shri V. K. Garg made their respective service appeals to the Delhi High court (Respondent No. 3) on 10. 2. 1987 which were eventually decided on 2. 3. 1988. Shri V. K. Garg approached the Delhi high Court on Judicial Side with a writ petition under Article 226 of the Constitution of India in May, 1988 and Shri rajinderpal Singh Lamba in February, 1989. Thus, from 1975 to 1986/1987, neither of them had agitated against non- consideration of their names for promotion to the post of UDC before they decided to make their respective representations to the respondent no. 4 and a period of 11/12 years was allowed to lapse during which a number of promotions of graduate and non-graduate LDCs to the posts of UDC had taken place. No doubt, in terms of Rule VI it was enjoined upon respondent no. 4, in pursuance of rota rule, to have considered their names for promotion to the post of UDC as and when the vacancies arose but he omitted to act in compliance with that rule and continued to promote the graduate and non-graduate ldcs on the basis of their length of service and fitness only. The cause of action accrued to the respondent no. 1, Shri V. K. Garg and other similarly situated graduate LDCs on the dates vacancies in the posts of UDC occured, to represent against denial of consideration of their names for promotion to them in compliance with Rule VI. The respondent no. 1 and Shri V. K. Garg, however, failed to act to ventilate their grievance. They seek to justify their inaction in this respect by pleading ignorance regarding existence of rule of rotation (Rule VI), prior to 1986 and 1987, when they made their respective representations to the respondent No. 4. Omission on their part to agitate against their names being not considered for promotion in compliance with rule of rotation lacks a valid explanation as ignorance of the same can hardly be accepted as a justifiable ground for total inaction on their part for a long period of 11/12 years. Omission on their part to agitate against their names being not considered for promotion in compliance with rule of rotation lacks a valid explanation as ignorance of the same can hardly be accepted as a justifiable ground for total inaction on their part for a long period of 11/12 years. ( 14 ) SHRI N. L. Bareja, learned counsel for respondent no. 1 referred to several decisions in support of his plea that the claim of respondent no. 1 cannot be thrown out simply on the ground of delay or laches, particularly when the plea in this respect has already been set at rest by the learned Single judge and the respondents 3 and 4 who had raised the plea have not appealed against the impugned judgment and further when the appellants had never taken the plea of delay or laches before the learned Single Judge. The decisions cited in this connection include Smt, Bhuri Bai (Dead) through LRs and others Vs. State of Madhya Pradesh. 1987 (Suppl) SCC 690; state Bank of Bikaner and Jaipur Vs. Hari Har Nath Bhargava, air ,1971 SC 2200; Sua Lal Yadav Vs. State of Rajasthan and. Ors. . AIR 1977 SC_ 2050 Madras Port. Trust_vs. Himanshu international, AIR 1979 SC 1144 ; ,ramchandera Shankar Deodhar and_ors. Vs. The State of Maharashstra and Ors. , AIR 1974 SC 259 ; G,. P. Doval and Ors. Vs. Chief. Secretary. Govt, of U. P. and. Ors. , AIR 1984 SC 1527 ; Aurn Kumar Chatterjee Vs. South- eastern Railway and Ors. 1985 (1) SLR SC 500; P. B. Rai Vs. Union of India. AIR 1972 SC 908 ; P. B. Nair Vs. Union of india and Ors. . 1992 LAB 1c 40; and J. M. J. S. Alexander Vs. Adminsitration of Goa; 1982 (2) SLJ page 132. ( 15 ) REFERENCE to the above referred individual cases does not appear necessary. In Ramcandera Shankar Deedhar and ors. Union of India. AIR 1972 SC 908 ; P. B. Nair Vs. Union of india and Ors. . 1992 LAB 1c 40; and J. M. J. S. Alexander Vs. Adminsitration of Goa; 1982 (2) SLJ page 132. ( 15 ) REFERENCE to the above referred individual cases does not appear necessary. In Ramcandera Shankar Deedhar and ors. ( supra), a Constitution Bench of the Hon ble Supreme Court dealt with the issue of delay or laches and summed it up in the followinterms; " The rule which says that a Court may not inquire into belated or 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. The question is one of discretion to be followed on the facts of each case. It may also be noted that the principle on which the court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. It may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be pursuaded to refuse relief solely on the jejune ground of laches, delay or the like. AIR 1970 SC 898 and AIR 1970 SC 470 , foll. " ( 16 ) CLEARLY, delay and laches per se offer no justification to decline the relief. However, in a case like present one, where a good number of graduate and non-graduate ldcs have been promoted during the period from 1975 to 1988 and their seniority, more or less, stands crystalised on the basis of length of their service, the inordinate delay in challenging the non-action on the part of respondent no. 4, can hardly be overlooked. The respondent no. 1 and Shri V. K. Garg have sought their promotion to the post of UDC with retrospective effect from 1976. 4, can hardly be overlooked. The respondent no. 1 and Shri V. K. Garg have sought their promotion to the post of UDC with retrospective effect from 1976. In the event of such a relief being granted, as a consequence, the issue of their seniority is bound to crop up, which may result into displacement of a sizable number of already promoted LDCs from their seniority positions. ( 17 ) FOUNDED on Apex Court opcisions in B. S. Bajwa and Anr. Vs. State of Punjab and Others (1998) 2 SCC 523 ; Union of india and Another Vs. S. S. Kothial and Others (1998) 8 SCC 682 ; gian Singh Mann Vs. High Court of Punjab and Haryana and Another (1980) 4 SCC 266 ; G. C. Gupta and Others Vs. N. K. Pandey and others, AIR 1988 SC 268 and Yashbir Singh and Others Vs. Union of India and Ors. AIR. 1988 SC 662. Shri Sandeep Sethi , learned counsel for the appellants contended that after lapse of a period of more than 11/12 years, an old matter of promotion and seniority cannot be allowed to be raked up to the detriment of appellants and many others. In B. S. Bajwa (supra) where the issue of seniority was raised by the appellants after the lapse of more than a decade, when promotions had also taken place in the intervening period, it was held : "the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing. the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition. "same very proposition of law emerges out of the other above referred cases. ( 18 ) IN Amrit Lal Berri vs Collector of Central Excise new_delhi Others, 1975 (1) SLR (SE) 153, referred to by Shri sandeep Sethi, learned counsel for the appellants, even in the matter of enforcement of fundamental rights, where equitable rights of innocent third persons intervened in between, the element of delay, and acquiscence were held not to be overlooked while considering a claim in that respect. ( 19 ) A point was raised on behalf of respondent no. ( 19 ) A point was raised on behalf of respondent no. 1 that since the plea of delay and laches was not raised earlier on behalf of appellants, before the learned Single Judge, it is now not open to them to come up with such a plea for the first time in the course of hearing of the present Letters Patent appeal. Support to this plea is sought to be raised by referring to decisions in Shanbaggakannu vs. Muthu Bhattar and another, AIR 1971 Supreme Court 2468; The Punjab Produce and Trading Co. Ltd. Vs. The Commissioner of Income-tax. West Bangal II, Calcutta, AIR 1971 Supreme Court 2471 Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumari Sharma air 1996 Supreme Court 869; Income tax Vs. Ch. Atchaiah. AIR 1996 Supreme Court 883; Bhanwar Lal Vs. T. K. A. Abdul Karim through N. K. Mohd. Mustafa. AIR 1992 Supreme court 2166; The Kurukshetra University and others Vs. Rural college of Education Kaithal, AIR 1980 Punjab and Haryana 103 sawan Ram Vs. Gobinda Ram and Anr. . AIR 1980 Punjab and Haryana 106 Chandgi Ram and another Vs. Moonga and others; AIR 1971 Punjab and Haryana 375; Harbans Lal and others Vs State of Punjab through. Secretary. Local Govt. Chandigarh and other, _air 1971 Punjab and Haryana 379; Ramchandra Kesheo uttarwar and Others Vs. Commr. , of Nagpur Rivision, Nagpur and others, AIR. 1973 Supreme Court 549; 1. Narinder jit Singh (In C. A. No. 1192 of 1967; 2. Ranjit Singh and others (In c. A. No. 1193 of 1967) Vs. The State of U. P. and others. AIR 1973 Supreme Court, 552; Jew at Bhapur Vs, State of Orissa and Ors. , 1998 IX. AD (S. C.) 304; Jai Bhagwan Sharma and another Vs Matu Ram Bhola Ram and others. AIR 1954 Punjab 135 ; Sarju Prasad Saha Vs. The State of U , P. and others. AIR 1965 Supreme Court 1763; Vimal Chandra Grover Vs. Bank of India AIR 2000 Supreme Court 2181; vs. Oriental Insurance Co. Ltd. . (2000) 2 Supreme Court Cases 734; BSI Ltd. and Another Vs. Gift Holdings Pvt. Ltd. and another; (2000) 2 Supreme Court Cases 737; M/s. Eklera china Clay and others Vs M/s, Ashwin and Co. and others AIR 1976 Delhi 283 Workmen of Jessop and Co,. and another. Vs. . Ltd. . (2000) 2 Supreme Court Cases 734; BSI Ltd. and Another Vs. Gift Holdings Pvt. Ltd. and another; (2000) 2 Supreme Court Cases 737; M/s. Eklera china Clay and others Vs M/s, Ashwin and Co. and others AIR 1976 Delhi 283 Workmen of Jessop and Co,. and another. Vs. . Jessop and Co and another 1974 LAB I. C. 33 2; om Prakash Gupta Vs. Union of India and Anr. JT 2000 ( 7 ) SC 500. ; Bir Singh Chauhan, Vs. State of Haryana and. Anr J T 1997 (6) S. C. 409; G. L. Bajaj. S. D. O. Vs. The State of Punjab and others, 1982 (1) SLR Punjab and Haryana 275; Smt. Naseem bano Vs. State of U. P. and others, AIR 1993 Supreme Court 2592 and Sockieting Tea Co. (Private) Ltd. Vs. Under secretary, to the Govt. of Assam,and, others. AIR 1973 Supreme court 851; ( 20 ) THE plea of delay or laches was raised before the learned Single Judge on behalf of respondents 3 and 4 only. Admittedly, no such plea was ever raised from the side of the appellants. The learned Single Judge declined to accept the plea of delay and laches raised by respondents 3 and 4. No appeal against the impugned, judgment has been filed on behalf of respondents 3 and 4 challenging that part of the impugned judgment. In spite of the fact that respondents 3 and 4 have not appealed against the impugned judgment rejecting their plea pertaining to delay or laches, it was open to them under order 41 Rule 22 Civil Procedure Code to have questioned the said part of impugned judgment provided they had taken cross-objection in that respect. Such cross-objection was required to be filed within one moth from the date of service of notice on them or their pleader or within such further time as the court could have allowed. The respondents 3 and 4 have, however, opted not to file any such cross-objection. As far as appellants are concerned, the plea of delay or laches raised on their behalf in the course of hearing does not constitute grounds of appeal. The respondents 3 and 4 have, however, opted not to file any such cross-objection. As far as appellants are concerned, the plea of delay or laches raised on their behalf in the course of hearing does not constitute grounds of appeal. However keeping in view the fact that the plea regarding delay or laches had earlier been raised by co-respondents 3 and 4 and dealt with by the learned Single ; judge in the impugned judgment and the same constitutes a vital point against belated and stale claim being granted, the plea on this count has been allowed to be raised in view of order 41 Rule 2 Civil Procedure Code, omission to incorporate this plea in the grounds of appeal notwithstanding. The Court may grant the appellants to raise a point to which the other side cannot legitimately raise an objection on the ground of surprise (See (1911) 38 Cat 629 (637) (P. C. ). In fact, the plea of delay or laches as such is not a new one and the only difference is that the same which/had initially been raised by respondents 3 and 4, before the learned Single Judge, has now been sought to be agitated by the appellants/ co-respondents. ( 21 ) NO dobt, non-action on the part of respondent no. 4 by omitting to consider for promotion to the post of UDC from amongst the graduate LDCs, by applying the rule of rotation was in violation of Rule VI affecting the conditions of service of the respondent no. 1 and Shri V. K. Garg, we are, however, unable to subscribe to the view taken by the learned single Judge that the inordinate delay in filing the petitions, was liable to be overlooked. ( 22 ) AS held in B. S. Bajwa and other cases referred to above, since the rule of promotion with retrospective effect, involves the issue of seniority as well, which cannot be reopened after lapse of a reasonable period to disturb the settled position, the writ petition is liable to be rejected on the ground of delay and laches alone and the impugned judgment thus cannot be sustained. ( 23 ) PROCEEDING to the next plea of Inapplicability of Rule vi, a reference may be made to Section 35 (3) of the Punjab courts Act, 1918, (for short the Act ) as the nucleus of argument advanced by Shri Sandeep Sethi, learned counsel for the appellants is that since this provision under which the punjab High Court Rules and Orders, 1918 including Rule VI were framed having been repealed by the Govt. of India (Adaptation of Indian Laws), Order 1937, Rule VI does not survive such repeal. ( 24 ) THIS plea was raised before the learned Single Judge on beahlf of none of the respondents, including the appellants. However, as the entire controversy between the parties revolves around Rule VI, the plea relating to applicability or otherwise thereof must receive due consideration. ( 25 ) THERE is no denial of the fact that Section 35 (3) of the Punjab Courts Act, 1918 stood repealed by the Govt. of india (Adaptation of Indian Laws) Order 1937 (for short order of 1937 ). It was, however, asserted on behalf of the respondents that notwithstanding repeal of Section 35 (3) of the Act, the Rules including Rule VI framed thereunder continued to be operative as the same were saved by Article 10 of the Order of 1937, till other provisions in this behalf were made by the competent authority. It was stressed that judicial pronouncements, involving application of various rules, including Rule VI, in a number of cases make it evident that the applicability of the rules, after repeal of Section 35 (3) of the Act, has never been held in doubt. In this connection, the cases which were referred to include Chander bhan Vs. Hoti_lal. JT 1991 SC 163; Hoti Lal Gupta Vs. Chander Bhan II and Ors. . 1982 LAB. I. C. 591. Delhi; sukhlal Tandon Vs,. Distt. and Sessions Judge Kangra and Ors. 1974 LAB. I. C. 78; S. K. Baharal Vs. Administrator. 1993 rajdhani Law. Reporter (Note) 40; , Dev Singh registrar Punjab and Haryana High Court and Ors, , JT 1987 ( 3 ) SC 34;gyan Prakasb Vs. Union of India and Ors. . 1998 LAB. I ,c. . SC, 391; The Punjab Process Serving Estabelishment. Union distt Court. Amritsar Vs The state of Punjab and Others 1997 (4) SLR 445; Shri Amar Singh Vs. The Chief Justice. Punjab and Haryana High Court. Union of India and Ors. . 1998 LAB. I ,c. . SC, 391; The Punjab Process Serving Estabelishment. Union distt Court. Amritsar Vs The state of Punjab and Others 1997 (4) SLR 445; Shri Amar Singh Vs. The Chief Justice. Punjab and Haryana High Court. Chandigarh and Ors. AIRi ,1976 punjab and Haryana 215; and Shakti Sarup Puri and Ors. Vs. Union of India and Ors. (decided by Central Administratative tribunal, New Delhi on 17. 7. 1986 in OA No. T-1050/1985 ). ( 26 ) SHRI Sandeep Sethi, learned counsel for the appellants, however, contended and rightly so, that in none of the aforesaid cases, the applicability as such of the rules was in issue. ( 27 ) A specific reference to a Full Bench decision of the punjab and Haryana High Court in Amar Singh s case (supra) was made on behalf of respondent no. 1, to counter the argument of shri Sethi. In Amar Singh s case (supra) it was held; "before embarking on the task of examining the problem from various angles, it would be fruitful to analyse the rules applicable to the appointment of Superintendent to the District and sessions Judge in their historical perspective. Before the enactment of the Government of India act, 1935, the appointment of the superintendents to the District and Sessions judges was governed by Section 35 of the Punjab courts Act, 1918, and the rules were framed by the High Court under sub-section (3) of Section 35. These rules are contained in Chapter 18-A volume 1, High Court Rules and Orders. After the coming into force of the Government of india Act, 1935, under clause (b) of sub section (1) of Section 241 of this Act, the power to make appointments to the civil services and posts in connection with the affairs of a province vested in the Governor or his nominee and under sub section (2) the governor could make rules for regulating the conditions of service of a person serving in connection with the affairs of a province. Though Section 35 of the Punjab Courts Act, 1918, was repealed by the Government of India (Adaptation of Indian Laws) Order, 1937, but the rules contained in Chapter 18-A, Volume 1, high Court Rules and Orders, were saved by article 10 of this Order till other provision in this behalf was made by the competent authority. Though Section 35 of the Punjab Courts Act, 1918, was repealed by the Government of India (Adaptation of Indian Laws) Order, 1937, but the rules contained in Chapter 18-A, Volume 1, high Court Rules and Orders, were saved by article 10 of this Order till other provision in this behalf was made by the competent authority. " ( 28 ) COUNTERING the plea on behalf of appellants that notwithstanding repeal of Section 35 (3) of the Act, by virtue of Article 10 of the Order of 1937, Rule VI continued to be in operation, Shri Sandeep Sethi appearing for the appellants. pointed out that Article 10 of the Order of 1937 is irrelevant in that it only provided for exercise of powers by a person or authority as applicable prior to the commencement of Part-11] of the Government of India, Act, 1935. Article 10 of the order of 1937 reads to the following effect: "save as provided by this Order all powers which under any law in force in British India, or in any part of British India, were immediately before the commencement of Part III of the Government of India Act, 1935, vested in, or exercisable by, any person or authority shall continue to be so vested or exercisable until other provision is made by some legislature or authority empowered to regulate the matter in question. ( 29 ) A plain reading of Article 10 of Order of 193 indicates that only the powers, vested in or exercisable by any person or authority, under any law in force in British india, immediately before the commencement of Part-Ill of the government of India Act, 1935, for which no provision was made in that Order, were saved and continued to be vested or exercisable by the same person or authority, until other provision was made by some legislature or authority. Thus, it is difficult to accept the argument of learned counsel for respondent no. 1, based on Full Bench decision of the Punjab and haryana High Court in Amar Singh s case (supra) that Chapter 18-A Vol. 1 (including Rule VI) of the Punjab High Court Rules and Orders was saved by Article 10 of the Order of 1937. It is actually Article 9 of the Order of 1937, which is in the nature of saving clause in relation to Chapter 18-A (Vol. 1 (including Rule VI) of the Punjab High Court Rules and Orders was saved by Article 10 of the Order of 1937. It is actually Article 9 of the Order of 1937, which is in the nature of saving clause in relation to Chapter 18-A (Vol. 1) of the Punjab High Court Rules and Orders. It reads as under; "the provisions of this Order which adapt or modify Indian laws so as to alter the manner in which, the authority by which, or the law under, or in accordance with which, any powers are exercisable, shall not render invalid any notification, order, commitment, attachment, byelaw, rule or regulation duly made, or issued, or anything duly done, before the commencement, of this Order; and any such notification, order, commitment, attachment, byelaw, rule, regulation or thing may be revoked, varied or undone in the like manner, to the like extent and in the like circumstances as if it had been made, issued or done after the commencement of this Order by the competent authority and under and in accordance with the provisions then applicable to such a case. " thus, in spite of repeal of Section 35 (3) of the Act, by virtue of Article 9 of the Order of 1937, Rule VI continued to be in operation. ( 30 ) APART from Article 9 of the Order of 1937, even otherwise. Section 24 read with Section 6 of the General clauses Act, 1897 also save the rules framed under the repealed Section 35 (3) of the Act. In the present case though it was a partial repeal of certain sections, including Section 35 of the Act, even in the case of such a partial repeal section 6 applies (see 1967 SC 1541) (1543 ). Under the common law when rule or bye-law is made under an Act or a Section thereof, the repeal of that Act or Section abrogates the Rule or byelaw, unless it is preserved by the repealing Act by means of a saving clause or otherwise. Section 24 deals with the continuation of Orders, Schemes, Rules, Forms or Byelaws, made or issued under the repealed Act (See AIR 1959 SC 648 ) (669) and AIR 1961 SC 1543 (1545-1546 ). Section 24 enacts a Rule different from the said common law Rule. Section 24 deals with the continuation of Orders, Schemes, Rules, Forms or Byelaws, made or issued under the repealed Act (See AIR 1959 SC 648 ) (669) and AIR 1961 SC 1543 (1545-1546 ). Section 24 enacts a Rule different from the said common law Rule. The subject-matter of Section 24 is the effect of repeal and re-enactment of an Act on statutory instruments issued under the repealed Act. The main object of the Section is to preserve the continuity of such instrument, unless a different intention appears. Thus, notwithstanding repeal of Section 35 (3) of the Act, the Rules framed thereunder continued to be in force. ( 31 ) THE Punjab Courts Act, 1918 was extended to the Union territory of Delhi vide Government of India (Home) notification No. 189/38 dated 30. 5. 1939. Shri Sandeep Sethi, learned counsel for the appellants pointed out that since the punjab Courts Act, 1918 was extended to the Union Territory of delhi after repeal of Section 35 (3) of the Act and the notification did not make the rules framed under the repealed section applicable to Delhi, the rules could not be held to have extended application to the Union Territory of Delhi. we, however, find it difficult to accept this contention. ( 32 ) PER Maxwell,. "on the Interpretation of Statutes", 10th edn. pp 50-51: "rules made under a statute must be treated for all purposes of construction or obligation exactly if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. " ( 33 ) THUS, since the Act included the rules as well, as framed under the repealed Section, with the extension of the act to the Union Territory of Delhi, by means of Notification dated 30. 5. 1939 the rules framed thereunder also stood extended to Delhi. ( 34 ) SHRI Sandeep Sethi, learned counsel for the appellants also pointed out that Section 35 (3) of the Punjab Courts Act was repealed in 1937 in view of enactment of Govt. 5. 1939 the rules framed thereunder also stood extended to Delhi. ( 34 ) SHRI Sandeep Sethi, learned counsel for the appellants also pointed out that Section 35 (3) of the Punjab Courts Act was repealed in 1937 in view of enactment of Govt. of India act, 1935 and by virtue of sub-sections (i) (ii) and (iii) o1 section 241 thereof the power to make appointments in Civil and sessions Court in the States including Delhi was vested in governor General in Council and in pursuance thereto, by a notification dated 17. 2. 1941 the Governor General in Council directed that the appointment to the posts in Civil Courts at delhi shall be made by the District and Sessions Judge, and further that the Judges of the High Court at Lahore would be authorised to make, subject to the previous approval of the central Government, rules prescribing the Conditions of service of such persons and posts, with the coming into force of the Constitution of India, it was pleaded. Article 309 came to hold the field and in exercise of powers thereunder and in supersession of earlier Notification dated 17. 2. 1941 the central Government by a Notification dated 28. 10. 1953 made the same provision. Mr. Sethi felt that if the rules framed under Section 35 (3) were to hold the field, there was no need of issuing the aforesaid two Notifications. No doubt, theorder of 1937 after repealing Section 35 (3) of the Punjab courts Act made provisions vesting the rule making power in the Governor -General in Council and the Governor General in council, in exercise of such power issued the said notification dated 17. 2. 1941, the rules as contained in chapter 18-A (Vol. 1) of the Punjab High Court Rules and Orders were never replaced or varied by the Judges of the High Court at Lahore and the same very rules continued to remain in force. Even after the issuance of Notification dated 28. 10. 1953 by the President of India under proviso to Article 309 of the Constitution of India, the old rules framed under section 35 (3) of the Act continued to be in force and no fresh rules were framed to replace the old ones. Even after the issuance of Notification dated 28. 10. 1953 by the President of India under proviso to Article 309 of the Constitution of India, the old rules framed under section 35 (3) of the Act continued to be in force and no fresh rules were framed to replace the old ones. The aforesaid two notifications simply made provisions to vest rule making power in the authorities mentioned therein but since such authorities did not proceed to make new rules in place of the old ones, the rules framed earlier under Section 35 (3) of the act continued to remain in force by virtue of Article 9 of the order of 1937. The said two Notifications were issued in order to provide for rule making authority in place of one under the repealed Section 35 (3) of the Act. Thus, issuance of these Notification cannot be taken to mean that the rules framed earlier under Section 35 (3) of the Act, had actually ceased to exist. ( 35 ) ON behalf of respondents 3 and 4 a reference was made to Section 7 of the Delhi High Court Act to contend that the rules in question stood extended to the Union Territory of delhi by virtue of that Section. Such an argument, however, does not help them. Section 7 of the Delhi High Court Act provides for the applicability to the Delhi High Court of "practice and Procedure" for the Punjab and Haryana High Court. It reads as under : "7. Such an argument, however, does not help them. Section 7 of the Delhi High Court Act provides for the applicability to the Delhi High Court of "practice and Procedure" for the Punjab and Haryana High Court. It reads as under : "7. Practice and Procedure in the High Court of Delhi- Subject to the provisions of the act, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of Delhi and accordingly the High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the high Court of Punjab and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction: provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High court of Punjab shall, until varied or revoked by rules or orders made by the High Court of delhi, apply with the necessary modifications in relation to practice and procedure in the high Court of Delhi as if made by that High court. " ( 36 ) "practice and Procedure" are said to relate to the legal rules directing the manner of bringing the parties into court, and the method of the court after they are brought in, in hearing, dealing with, and disposing of, matters in disputes between them (see in words and Phrases Vol. 33 at page 88 ). In tata Oil Mills Vs. Hansa Pharmacy. ILR 1979 (2) Delhi 236 procedure was held to signify the mode in which the successive steps in litigation are taken. Thus,,"practice and Procedure" as occuring in Section 7 of the Delhi High Court Act appear to speak of the Rules on Practice and Procedure applicable to the delhi High Court on its Judicial side only. Therefore, the argument that the rules in question became applicable to the union Territory of Delhi by virtue of Section 7 of the Delhi high Court Act is misconceived and difficult to accept. Therefore, the argument that the rules in question became applicable to the union Territory of Delhi by virtue of Section 7 of the Delhi high Court Act is misconceived and difficult to accept. However, in spite of the plea of the respondents being negatived, as already observed, the rules in question including Rule VI, are held to be applicable to Delhi until other rules varying or replacing the same were framed by the appropriate authority. ( 37 ) ADVERTING to the scope and application of Rule VI, for the benefit of reference Rule VI may be extracted hereinunder; "promotion- (1) Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades, provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted; for which purpose tests may be imposed. This rule does not apply to such posts as that of stenographer; for which special qualifications are needed; but preference should be given to officers with such qualifications who are already working in the lower grades; provided that permanent vacancies in the 75-5-125 grade shall be filled by the District and Sessions Judges in the following rotation:-- (1) By selection on merit out of graduates who have atheist two years experience in the work of the office, if there is no suitable graduate who fulfils this condition an outsider graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District and Sessions Judge. (ii) and (iii) By normal promotion in the office, i. e. , the appointment of the next senior man whether graduate or non-graduate subject to his fitness; provided further that the rotation may be modified in very exceptional cases when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi-permanently in the post concerned for an appreciable period, what is an appreciable period will depend on the circumstances of each case. After such a modification, the rotation should be restored as soon as possible. (2) In making promotions preference may invariably be shown to officials who are known to be strictly honest. After such a modification, the rotation should be restored as soon as possible. (2) In making promotions preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity. Efficiency without honesty is not to be regarded as constituting a claim to promotion. " ( 38 ) RULE VI has been in operation without any amendment therein until 19th. of March, 1999 when fresh rules of promotion were framed by the Punjab and Haryana High Court substituting Rule VI vide Punjab Government, Gaz. , 19/03/1999 (PHGN, 1920, SAKA ). In the present case, it is unnecessary to take note of such fresh rules by extracting the same here. Rule VI as extracted hereinabove, is quite clear and unambiguous in its scope and application. Sub-rule (1) of rule VI embodies a normal rule of promotion to the higher grade of the ministerial establishment on the basis of seniority-cum-fitness. First proviso to this sub rule, however, subjects it to a rider to the effect that the permanent vacancies in the grade of 75-5-125 shall be filled in the following rotation:- (I) By selection on merit out of graduates who have at least two years experience in the work of the office, or by direct recruitment of an outsider graduate; (II) and (iii) by normal promotion in the office,. i. e. the appointment of the next senior man whether graduate or non-graduate subject to his fitness. ( 39 ) THUS, in making appointments/ promotion to the aforesaid, higher grade of the ministerial establishment, rule of rotation is made applicable by virtue of which the first vacancy is required to be filied-up by selection on merit out of graduate LDCs, who have at least two years experience in the work of the office or in case of no suitable graduate LDC fulfilling the said condition being available, by appointment of an outsider graduate, who normally resides within the jurisdiction of the District and Sessions Judge; the second and third vacancies are to be filled by normal promotion of the next senior man, whether graduate or non-graduate, subject to his fitness. A further proviso to sub-rule (i) of Rule VI provides for modification of the said rule of rotation when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi-permanently in the post concerned for an appreciable period but the power under this proviso is exercisable in very exceptional cases only. This proviso in fact, deals with the. appointment of outsider graduates only. Needless to point out that by virtue of application of rule of rotation in promotion/ appointment from the lower grade of LDCs to the higher grade of UDCs, or outsider graduates, the ones Selected on merit, come to occupy senior positions to those promoted against the other two vacancies on the basis of seniority-cum-fitness. ( 40 ) IT was pointed out on behalf of respondents 3 and 4 that no promotions by applying rule of rotation based on selection on merits out of graduates, who have at least two years experience in the work of the office, or by direct appointment of outsider graduates have ever been made prior to the filing of the writ petitions by respondent no. 1 and Shri V. K. Garg and all the promotions from the cadre of LDCs to that of udcs have been made on the basis of length of service only i. e. seniority-cum-fitness. No reason is set-forth for omission to make promotions by applying rule of rotation. whatever may be the reason, the fact is that no promotions by selection on merit out of graduate LDCs having at least two years experience in the office work or by direct recruitment had taken place prior to filing of the writ petitions in question and thus, the seniority of the graduate or non-graduate LDCs promoted to the posts of UDC from time, to time could not have been fixed by applying the said rule of rotation. ( 41 ) THOUGH Rule VI does not, in express terms, provide for quota in relation to graduate LDCs or outsider graduates, to be promoted or appointed to the posts of UDC, it is implicit in the rule of rotation. ( 41 ) THOUGH Rule VI does not, in express terms, provide for quota in relation to graduate LDCs or outsider graduates, to be promoted or appointed to the posts of UDC, it is implicit in the rule of rotation. In terms of first proviso to Rule Vi (l), the promotions or appointments to the posts of i ^ udc, from amongst eligible graduate LDCs or outsider graduates, as the case may be, on one hand and that of graduate and non-graduate LDCs, on the other, were to be made in the ratio of l -2 and their seniority was to be fixed as per rota rule of seniority. Prior to the filing of the writ petitions No. 1939/88 and 1152/88, there has, however, been a complete departure from quota rule. In a situation were rota rule of seniority, is interlinked with quota rule and the latter is completely or unreasonably departed from and thus breaks down, rota rule of seniority ceases to have its application. ( 42 ) IN a decision in A, Janardhana Vs. Union of India and Ors. . 1983 (2) SCR 936 it was held; " As quota rule was directly inter-related with the seniority rule, and once the quota rule gave way, the seniority rule became wholly otiose and ineffective. It is equally well-recognised that where the quota rule is linked with the seniority rule, if the first breaks down or is illegally not adhered to giving effect to the second would be unjust, inequitous and improper. In yet another decision in P. S. . htahal Vs. Union of India . AIR 1984 SC 1291 it was observed : " the rotational rule of seniority is inextricably linked with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year, to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority. " ( 43 ) SAME view finds projection in Shri P. P. Singla Vs. Union of India, AIR 1984 SC 1595 and Shri. G. S. Lamb a and Ors. Vs. Union of India and Ors. . AIR 1985 SC 1019 . " ( 43 ) SAME view finds projection in Shri P. P. Singla Vs. Union of India, AIR 1984 SC 1595 and Shri. G. S. Lamb a and Ors. Vs. Union of India and Ors. . AIR 1985 SC 1019 . ( 44 ) AS quota rota rule contained in Rule VI was not adhered to, prior to filing of the said writ petitions and all the promotions from the cadre of LDCs to that of UDCs were made on seniority-cum-fitness basis only and the quota rota rule has thus broken down, it is not open to apply rotational rule of seniority with retrospective effect. In the given situation where quota rota rule had broken down, the same could not be revived and applied retrospectively to extend the benefit of rotational rule of seniority as contained in Rule vi to graduate LDCs like respondent no. 1. Rotational rule of seniority being not available for application with retrospective effect, the seniority of all graduate and non-graduate LDCs promoted to the posts of UDC is to be fixed on the basis of length of service only. ( 45 ) ON the issue of deemed promotion with retrospective effect, the impugned judgment proceeds on the assumption that wherever the claim of an employee to be considered for promotion in terms of statutory rules is ignored by the employer, such employee is entitled to deemed promotion retrospectively. Shri Sandeep Sethi appearing for the appellants, however, on the basis of Supreme Court decisions in State of Madhya Pradesh Vs. Shri Srikant Chaphekar. 1992 (5) SLR 635; State of Mysore and Another Vs. P. N. Nanjundiah and another. 1969 SLR 346; State of Mysore Vs. C. R. Seshadri and Ors. . 1974 (1) S. L. R. 407 questioned the correctness of this part of the impugned judgment contending that issuing a direction for actual promotion does not fall within the realm of writ jurisdiction of the court and at best the direction can be only for consideration of a candidate for promotion in accordance with relevant rules and subject to availability of vacancy; particularly, for a selection post, as in the present case. In P. N. Nanjudiah (supra) where the high Court issued a writ of Mandamus directing the Government to promote aggrieved official from retrospective date, the hon ble Supreme Court did not approve of it holding; " It has been pointed out by this Court in the State of Mysore Vs. Syed Mahmood and others that in matters of this description the High Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High court was to issue a writ to the State government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the first respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him. . . . . . . . . . . . . . . . " ( 46 ) IN C. R. Seshadri s case (supra) also a similar view was taken. This was a case where the relief seeking official had retired during the pendency of the appeal by the State before the Hon ble Supreme Court against the decision of the high Court directing to give notional promotion, to the official concerned with effect from a particular date, it was laid down: " the power to promote an officer belongs to the Executive and the Judicial power may control or review government action but cannot extend, to acting as if it were the executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. . . . . . . . . " ( 47 ) SHRI N. L. Bareja, learned counsel for respondent no. 1 relied upon the decisions reported in The Distt. Registrar balghat and Ors Vs. M. B. Koyyakutti and Ors. . AIR 1979 SC 1060 ; The Comptroller and Auditor General of India. Gian prakash, New Delhi and Anr, Vs. K. S. Jagannathan and Anr. AIR 1987 SC 537 ; Badrinath Vs. Ors. . JT 2000 (Suppl. l) SC 346; Dr. (Mrs.) Sandhya Jain Vs dr. ,subhash Garg and Anr. ,. AIR 2000 SC 29 ; State of Bihar vs. Dr. Braj Kumar Mishra and Ors. Gian prakash, New Delhi and Anr, Vs. K. S. Jagannathan and Anr. AIR 1987 SC 537 ; Badrinath Vs. Ors. . JT 2000 (Suppl. l) SC 346; Dr. (Mrs.) Sandhya Jain Vs dr. ,subhash Garg and Anr. ,. AIR 2000 SC 29 ; State of Bihar vs. Dr. Braj Kumar Mishra and Ors. AIR 2000 SC 106 ; C. O/ arumugam and Ors. Vs. State of Tamil Nadu and Or s. . 1991 supp (2) SCC 199; Maharashtra Vikri Kar Karamchari Sanahathan vs. . . . . . . . . . . . . . . . . . . . State of Maharashtra and Anr. AIR 2000 SC 622 ; Ram Sevak prasad Vs. State of U. P. and Ors. . JT 1991 (3) SC 84; Ashok v. David Vs. . U . O. I. and0rs. . AIR 1996 SC 2165 ; Viranderkumar Singh Vs. The State of U. P. and Ors. . JT 2000 (10) SC 454; Gurcharan Dass Vaid Vs. . State of Punjab and Ors. . 1972 slr (4) SC; R. K. Singh Vs. State of U. P. and Ors. . 1991 supp (2) SCC 126; Jagbir Singh Vs. , State of Haryana and Ors. . 1996-III AD, SC 671; Shri Ashok V. Vaid Vs. David Shri M. G. Halapanavar Union of India and, Ors. . 1996 IV AD SC 615; Union of India etc. ,etc. Vs. K. V Jankiraman, etc. etc , AIR 1991 SC 2010 ; R. C. Jain Vs. Haryana State Electricity Board panchkular, 1995 (2) SLR 651, for support to his contention that in appropriate cases the court was not without power to issue writ of mandamus directing deemed promotion from a particular date. while ratio of decisions in some of the cases so referred are distinguishable on facts, the other cases involved the question of promotion on seniority-cum-fitness basis. In none of these cases the promotion was to be given by selection on merit as in the present case. In C. R,. Seshadri . s case (supra) the Hon ble supreme Court while disapproving issuance of direction by the high Court for notional promotion with retrospective effect, observed : " Basically, it is in Government s discretionary powers, fairly exercised, to promote a Government servant. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand if seniority-cum-merit is the rule, promotion is problematical. " ( 48 ) ADMITTEDLY, in the case on hand promotion to. respondent no. 1 to the post of UDC is being sought with retrospective effect by virtue of rule of rotation by selection on merit. It is not on Seniority-cum-merit basis. The promotion to the post of UDC being by selection on merit the court cannot say that the respondent no. 1 would have been for certain, promoted to the post of UDC, had he been considered for promotion to that post with effect from 1. 1. 1976 as directed by the learned Single Judge. It being a selection post, in the process of selection, the possibility of some other graduate LDC scoring over respondent no. 1 in the matter of promotion to the post of UDC, by virtue of rule of rotation, cannot be ruled out. This apart, yet another aspect which needed to be taken into account while directing promotion with retrospective effect from a particular date is the availability of vacancy in the post of UDC on that date. No promotion could be directed to be given to respondent no. 1 from 1. 1. 1976 unless the court had the necessary data regarding vacancy position in the post of UDCs. Both these aspects appear to have escaped due consideration on the part of the learned Single Judge while directing promotion of respondent no. 1 with retrospective effect from 1. 1. 1976. It is, therefore, difficult, to agree with the view taken by the learned Single Judge directing deemed promotion of respondent no. 1 with effect from 1. 1. 1976. For the same reason, we are further unable toendorse the direction extending the benefit of deemed promotion to the other similarly situated persons like the respondent no. 1. Consequently, the impugned judgment in these respects cannot be sustained. ( 49 ) CONSTITUTIONAL validity of Rule VI is sought to be questioned on behalf of appellants on the grounds that the qualification for LDCs and UDCs being the same and the graduate and non-graduate LDCs and UDCs performing the same duties, there is no reason to carve out certain vacancies to be filled-up by graduates only. ( 49 ) CONSTITUTIONAL validity of Rule VI is sought to be questioned on behalf of appellants on the grounds that the qualification for LDCs and UDCs being the same and the graduate and non-graduate LDCs and UDCs performing the same duties, there is no reason to carve out certain vacancies to be filled-up by graduates only. The rule of rotation in favour of graduate LDCs as contemplated by Rule VI, it is contended, militates against the constitutional guarantee of equality before law and equality of opportunity as enshrined in Articles 14 and 16 of the Constitution of India. ( 50 ) SHRI Sandeep Sethi, appearing for the appellants, sought to maintain that Rule VI, being violative of Articles 14 and 16 of the Constitution, is liable to be struck down and in the absence of any valid rule of rotation, the seniority of the incumbents of the posts of UDC is to. be fixed on the basis of length of service only. To lend support to his contention, a decision of the Apex Court in M. B. Joshi and Others Versus Ram saran Gupta and Others, AIR 1993 SC 267 , was referred to.