Letters Patent Appeal No. 951 of 1991 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Letters Patent Appeal No. 951 of 1991 Date of Decision: March 27, 2009 Jagjit Singh Sandhu .......... Appellant versus The State of Punjab and others ........... Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. V.K. Sibal, Advocate and Mr. Sapan Dhir, Advocate for the appellant Mr. H.S. Sidhu, Additional Advocate General, Punjab Mr. Rajiv Atma Ram, Senior Advocate with Mr. G.S. Mann, Advocate for respondents No. 10, 11 and 14 and also for applicants in CM No. 889 of 2008 ***** HEMANT GUPTA, J. The present appeal under Clause X of the Letters Patent is directed against the order of learned Single Judge dated 18.07.1991. Vide the aforesaid order, learned Single Judge has decided three writ petitions in respect of inter se seniority dispute between the direct recruits and promotees. The present appeal arising out of Civil Writ Petition No. 5265 of 1983 was filed by directly recruited Degree Holders to Punjab Service of Letters Patent Appeal No. 951 of 1991 [2] Engineers Class II. Petitioner No. 9 in the said writ petition is the appellant in the present appeal. Civil Writ Petition No. 6758 of 1986 decided along with the aforesaid writ petition. It was filed by one G.D. Gupta who was initially appointed as Junior Engineer and promoted as Sub Divisional Engineer on acquiring Civil Engineering degree on 1.1.1974. He was given regular promotion w.e.f. 7.11.1979. Civil Writ Petition No. 7829 of 1988 was preferred by Sarv Shri Tek Bahadur Singh and D.P. Sharma. They were appointed as Sectional Officer and promoted as Sub Divisional Engineer on 7.11.1979. The question involved in the present writ petition is in respect of the post falling to the share of candidate belonging to Source IV ( Sectional Officers and Draftsman) possessing qualifications prescribed in Appendix 'B' of Punjab Service of Engineers, Class II, P.W.D. (Buildings and Roads Branch) Rules, 1965 (hereinafter to be referred as “the Rules”). The learned Single Judge held to the following effect: - “ To summarise, I am of the view that : (1) rule 6 provide the ratio and the order in which the appointments have to be made from various sources. It lays down the slots for each source and the post at a particular number can be filled up by a person belonging to that source only; (2) rule 6(2) enables the Government to fill up a vacancy belonging to the share of persons from source 4 by direct recruitment. However, by this provision the order of appointment laid down under rule 6(1) is not affected; (3) the inter se seniority of direct recruits has to be fixed in the order of merit under rule 8; (4) the inter se seniority of the promotees is determined by the order of merit prepared under rule 9; Letters Patent Appeal No. 951 of 1991 [3] (5) the inter se seniority of the members of the service has to be determined in the order / sequence provided for under rule 6(1); (6) in case a direct recruit or a promotee fails to join his appointment within 6 months of the date of the order of appointment, the Govt. has the power to fix the seniority after taking into consideration the various circumstances of the case”. In view of the above conclusion and also for the reason that the writ petition suffers from delay and laches, Civil Writ Petition No. 5265 of 1983 was dismissed, whereas other two writ petitions were allowed. The present appeal along with number of other appeals came to be decided by a common order on 30.11.1999. Apart from the appeals arising out of three writ petitions mentioned above, LPA Nos. 852 and 853 of 1992 were also heard and decided along with the appeals against the order impugned in present appeal. The said appeals arise out of order dated July 25, 1991 passed in CWP No. 3523 and 3525 of 1988 passed by another learned Single Bench of this Court. In the aforesaid writ petitions, the promotees had claimed seniority over the direct recruits. The Letters Patent Bench of this Court dismissed the writ petitions filed by the promotees and allowed the writ petitions filed by the direct recruits. The Division Bench also set aside the finding recorded by the learned Single Judge that the writ petition filed by the direct recruits suffers from delay and laches. The judgment of Division Bench of this Court became subject matter of challenge in Civil Appeal No. 858 of 2001 filed by Davinder Pal Sharma, respondent No. 14 in CWP No. 5265 of 1983, and Civil Appeal No. 859 of 2001 filed by Avtar Singh Basra, Kanshi Ram, Inder Mohan, Gurdial Singh, Krishan Lal Aggarwal and Hari Paul, respondent Nos. 8, 6, Letters Patent Appeal No. 951 of 1991 [4] 10, 7, 11 and 16 respectively i.e., promotees, in the aforesaid writ petition. No appeal was taken out against the writ petitions filed by the promotees. As a matter of fact, CWP No. 5265 of 1983 was the only writ petition filed by the direct recruits whereas other four writ petitions were filed by the promotees. Before the Supreme Court, it was argued by the promotee officers that the Punjab Service of Engineers Class II (Building and Roads Branch) Rules, 1965 were amended by the Punjab Service of Engineers, Class II, P.W.D. (Building and Roads Branch) First Amendment Rules, 1986, on 2nd June, 1986. Rule 9 was amended and a proviso was added to sub-rule (11) but the said provision has not been brought to the notice of the Division Bench of this Court. The matter was remitted to this Court with the following observations: - “ Therefore, looking to the facts and circumstances of the case, we deem it proper to remit back these matters to the High Court so that the High Court may decide the effect of the proviso to Sub-Rule (11) of Rule 9 of the Rules. In this view of the matter, we allow these appeals, set aside the order of the Punjab and Haryana High Court and remit these cases back to the High Court for deciding the issue again with reference to the proviso to Sub-Rule (11) of Rule 9 of the Punjab Service of Engineers, Class II, P.W.D. (Building and Road Branch) Rules, as amended”. During the pendency of the present appeal, Civil Miscellaneous No. 889 of 2008 has been filed by one Sohan Lal Gupta and Gurdev Singh to implead the said applicants as parties in the present appeal as they are going to the affected by the outcome of the same. It has been averred that the applicants have been promoted on 29.07.2008 subject to final decision of the present appeal and that the applicants are eligible for promotion under Letters Patent Appeal No. 951 of 1991 [5] Source IV. It is pleaded that 105 direct recruits were recruited to Class-II Service in the year 1972 but none of them was appointed against vacancy under Source IV of Rule 6(1) and these posts were kept vacant and reserved for people belonging to Source IV. It is also pleaded that the applicants had filed I.A. No. 5 of 2003 for intervention in Civil Appeal No. 858 of 2001in which liberty was given to the applicants to address arguments at the time of hearing. At the time of final hearing, the matter was remitted to the High Court. During the course of arguments, it is admitted by the learned counsel for the parties that all the direct recruits and the promotees in the petition have since retired and that the issue of inter se seniority is not really relevant between them. However, it was contended by Mr. Sibal that though the parties to the writ petition have retired but the interpretation of the Rules is required to be finalised to resolve inter se dispute between direct recruits and promotees in respect of seniority of the existing members of the service. It is also pointed by Mr. Sibal that some other writ petitions in respect of interpretation of Rules are pending before this Court including CWP No. 16923 of 2008. Having heard learned counsel for the parties at some length, we are of the opinion that interpretation of the Rules is purely academic in the present appeal. Such interpretation is neither directly or substantially likely to affect any of the parties to the writ petition though the issue may be relevant for other in service candidates including the applicants. In Sanjeev Coke Manufacturing Company vs. M/s Bharat Coking Coal Ltd and another, AIR 1983 SC 239, Supreme Court has held that the questions which are academic and have no effect on the rights of the parties to the lis Letters Patent Appeal No. 951 of 1991 [6] should not be decided. It was held to the following effect: - “ ....... We have serious reservations on the question whether it is open to a Court to answer academic or hypothetical questions on such considerations, particularly so when serious constitutional issues are involved. We (judges) are not authorised to make disembodied pronouncements on serious and cloudy issues of constitutional policy without battle lines being properly drawn. Judicial pronouncements cannot be immaculate legal conceptions. It is but right that no important point of law should be decided without a proper lis between parties properly ranged on either side and a crossing of the swords. We think it is inexpedient for the Supreme Court to delve into problems which do not arise and express opinion thereon”. Admittedly, the affected parties in the present appeal have retired from service. Inter seniority dispute between the direct recruits and the promotees is, thus, academic amongst the parties to the petition and /or appeal. Thus, we are of the opinion that the issue regarding interpretation of the Rules need not be gone into in the present appeal. Such interpretation of the Rules can be examined in an independent proceedings. It shall be open to the Bench seized of the matter to opine as the questions raised in accordance with law. The present appeal stands disposed of accordingly. ( T.S. THAKUR ) ( HEMANT GUPTA ) CHIEF JUSTICE JUDGE March 27, 2009 khushbir