2021 INSC 0808 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s). 5966 OF 2021 (arising out of SLP (C ivil ) No (s) . 5435 of 2020 ) AJAY KUMAR SHUKLA AND OTHERS ... APPELLANT (S) VERSUS ARVIND RAI AND OTHERS ...RESPONDENT(S) WITH CIVIL APPEAL NO(s). 5969 OF 2021 (arising out of SLP (Civil) No(s). 8783 of 2020 ) ASHISH KUMAR SRIVASTAVA AND OTHERS ... APPELLANT (S) VERSUS RAJESH KUMAR SINGH AND OTHERS ...RESPONDENT (S) AND CIVIL APPEAL NO(s). 5967 OF 2021 (arising out of SLP (Civil) No(s). 5706 of 2020 ) MANOJ KUMAR SHUKLA AND OTHERS ... APPELLANT (S) VERSUS RAJESH KUMAR SINGH AND OTHERS ...RESPONDENT (S) 2 AND CIVIL APPEAL NO(s). 5968 OF 2021 (arising out of SLP (Civil) No(s). 5850 of 2020 ) MAHESH CHANDRA BADHANI AND OTHERS ... APPELLANT (S) VERSUS DHARMENDRA SINGH AND OTHERS ...RESPONDENT (S) J U D G M E N T VIKRAM NATH, J. 1. The present set of appeals preferred by the original writ petition er s (before the High Court ) assail s the correctness of the judgement and order dated 04.12.2019 passed by Division Bench of the Allahabad High Court in Special Appeal No. 8 19 of 2019, in between Rajesh Kumar Singh and Another vs. Rajeev Nain Upadhyay and 24 Others whereby the Division Bench allowed the appeal, set aside the judgment and order of the learned Single Judge and dismissed the writ petition. 3 Background: 2. The appellants , who were working as Junior Engineers in the Department of Minor Irrigation, State of Uttar Pradesh, aggrieved by the final seniority list dated 05.03.2010 challenged the same by way of Writ Petition No. 53123 of 2012 , being Rajeev Nain Upadhyay and Others vs. State of Uttar Pradesh and Others . The appellants (Original Writ Petitioners) belong to the Mechanical and Civil Streams whereas Private Respondents are from the Agriculture Stream . 3. Originally when the petition was filed , challenge was only to the seniority list published on 05. 03.2010. However, during the pendency of the petition by way of amendment, challenge was also made to the earlier seniority list published on 05. 09.2006 . The said amend ment was allowed . Thus, the relief s claimed post amendment, read as follows: “Prayer Original prayer in the writ petition before the high court: It is, therefore, most respectfully prayed that this Hon’ble court may be pleased to issue: i. A writ, order or direction in the nature of certiorari quashing the office order dated 05.03.2010 issued by the Chief Engineer (Minor Irrigation), U.P. Lucknow and the seniority list appended thereto (Annexure 12 to the writ petition). 4 ii. A writ, order or directi on of a suitable nature commanding the respondents to prepare and publish a revised seniority list in conformity with UP Government Servant Seniority Rule 1998 within a period to be specified by this Hon’ble court. iii. A writ, order or direction of a suit able nature restraining the respondents from taking any action on the basis of impugned office order. iv. A writ, order or direction in the nature of which this Hon’ble court may deem fit and proper under the circumstances of the case. v. Award cost to the humble petitioner throughout of the present writ petition. Prayer added subsequently to the original prayer in writ petition before the High Court: That the following prayers may be added after prayer no (i) as prayer no. i -a) & i-b) i-a) Certiorari quashing for the record to quash the seniority list dated 5.9.2006. i·b) mandamus restraining the respondents from giving any benefits to the respondents on the basis of the seniority list dated 5.9.2006. ” 4. The learned Single Judge , vide judgement and order dated 14.05.2019 , allowed the writ petition , quashed the seniority list s dated 05.09.2006 and 05.03.2010 and further issued a writ of mandamus directing the respondent s to draw a fresh seniority list in accordance with Rule 5 of the Uttar Pradesh Government Servant s Seniority Rules, 1991 (for short “Rules 199 1” ). It was also provided that any promotions made during the pendency of the writ petitions would not be interfered with but would remain subject to the fresh seniority list to be prepared in accordance with 5 Rule 5 of Rules 199 1. Learned Single Judge recorded the following findings to arrive at the above conclusions: a) After examining the relevant rules and also the scheme of determination of the seniority, it was recorded that the existing seniority list would not only be prejudicial to the interest of junio r engineers belong ing to civil and mech anical branch but would also affect the ir chances of promotion. It would also be generating heart burn , adversely affecting the administration and working of the entire department. Para graph 21 of the judgment of learned Single Judge is reproduced below: “21. T he scenario noticed above would not only be prejudic ial to the interests of Junior Engineers belonging to Civil· and Mechanical Engineering Stream as it would affect their chances of pr omotion and generate heart -burning but would adversely affect the requirement of work to be managed by the department also. ” b) The objection taken by the respondents to the original writ petition regarding the petition suffering from delay and laches , was elaborately dealt with. The law on the point was dealt with in abundance and thereafter it was recorded that a delay of three to four years, in a ma tter relating to seniority dispute would not be fatal. R el iance was placed upon the judgment of 6 Shiba S hankar Mohapatra v s. State of Orissa 1. It was held that in the present case, there was no delay or laches. c) It was also recorded that once there was a serious challenge to the determination of seniority on the ground that the seniority list had been prepared de hors the rules , writ petition was required to be considered on merits. d) Three different lists were forwarded by the C ommission relating to the same selection and therefore , a common inter se merit of the candidates from the three lists ought to have been prepared and accordingly seniority ought to have been fixed. e) The Competent Authority and the State committed a serious error of law in determining the seniority list merely on the basis of the date of receipt of the three select lists arising out of the same selection. Such an acti on could neither be supported in law or on facts nor the task of determining seniority be left to such a fortuitous circumstance. f) The date of dispatch of select list , by no stretch of imagination could be a determining factor for preparing the seniority list. 1 (2010) 12 SCC 471 7 The Competent Authority and the State have acted contrary to the specific provisions contained in R ules 1991. A s such their action is arbitrary and also against the constitutional spirit of equal op portunity in matters of public employment. 5. The judgment of the learned Single Judge was assailed by way of intra court appeal registered as Special Appeal No. 819 of 2019 . The Division Bench , vide judgment and order dated 04.12. 2019 , allowed the appeal , set aside the judgment of the learned Single Judge and dismissed the writ petition . This judgment has given rise to the present set of appeals . The Division Bench recorded the following findings to arrive at the above conclusions : a) There was extraordinary delay on the part of the original writ petitioners in approaching the Court inasmuch as the seniority list of 2006 which had formed the bas is of the 2009 seniority list, was not challenged within a reasonable time. b) The original writ petitioners having not challenged the final seniority list dated 05. 09.2006 principally accepted the same as such their claim would be barred by principle of acquiescence . 8 c) All the affected Junior Engineers having not been impleaded would be fatal on the principle of non -joinder of necessary parties. d) The appellants having participated in selection/appointment process, later on, cannot challenge the process as such action would be hit by doctrine of estoppel and acquiescence . e) The learned Single Judge was not right in directing for preparation of the seniority list in accordance with Rule 5 of R ules 1991 as it would be R ule 8 which would be applicable and not R ule 5. Facts : 6. The factual matrix relevant for adjudication of this set of appeal s are: a) The Chief Engineer , Department of Minor Irrigation send a requisition dated 18.06.1998 to the Uttar Pradesh Public Service Commission (for short “the Commission”) requesting for recruitment o f 206 posts of Junior Engineer s in the Department of Minor Irrigation . These posts were further divided inter se 9 between agriculture, mechanical and civil streams in the ratio of 50:30:20 respectively . b) The Commission i ssued an Advertisement No. 3 of 1998 - 1999 , inviting applicat ions for the post of Junior Engineer s. The examination process was in two tiers ; a screening test which was held on 18.10. 1998 and after qualifying this screening test, there was an interview to be conducted by the Commission . The result of the screening test was declared on 06.01.1999 and thereafter , interviews were conducted by the Commission from 07.06.1999 to 26.06.1999 with respect to candidates who were holding a Diploma in Agricultural Engineering . Ins ofar as candidates holding Diploma in Mechanical Engineering were concerned , the ir interviews were held between 24 .06.1999 to 02 .07.1999 and lastly for candidates holding Diploma in Civil Engineering , their interviews were held between 07.07.1999 to 22. 12 .1999. After finalising the results, the Commission forwarded three separate select list s to the Minor Irrigation Department of the State Government, as follows: i) On 28 .09.1999 , the select list of candidates pertaining to Agricultural Engineer ing ; 10 ii) On 06 .01. 2000, the select list of candidates pertaining to Mechanical Engineer ing and , iii ) Lastly on 07.11.2000, the select list of candidates pertaining to Civil Engineer ing . Note : There is some discrepancy regarding the dates of the three lists being forwarded to the department. The Commission, in its affidavits filed, has given different dates. However , the fact remains that the sequence of sending the lists of three different streams remains the same i.e. Agriculture, Mechanical and Civil in that order. In one of the affidavits, the three dates are 06.01.2000, 27.01.2000 and 07.11.2000 for Agriculture, Mechanical and Civil Junior Engineers. In another affidavit it is 28.09.19 99, 06. 01.2000 and 07.11.2000 in the same order. Hereinafter we have dealt these dates as 28.09.1999, 06.01.2000 and 07.11.2000 respectively. c) Based upon the above three select list s forwarded by the Commission, appointment letter s were issued on 08.10.2001 . The appointment letter clearly indicated that the issue regarding seniority would be decided later on . Pursuant to the 11 appointment letters dated 08 .10. 2001 , the petitioner and private respondents joined. d) In 2006, a tentative seniority list was published vide office order dated 17.03.2006 with respect to all the Junior Engineers appointed after 01.01.19 89 . Later on, vide office order dated 05.09.2006 , a final seniority list was published. The last sentence of the said office order read s that the seniority of the candidates selected by the Commission ha s been kept in their serial of merit. e) The department took a fresh exercise of preparing the seniority list in 2009 as for the first time Rules relating to Junior Engineers of the Minor Irrigation Department were framed. Reference to these Rules would be made a little later. f) Accordingly, a provisional seniority list was published vide office order dated 29.1 2.2009 inviting objections. The objections received were considered and vide office order dated 05.03.201 0, a final sen iority list was published. In the latter part of paragraph 11 of the office order dated 05.03.2010 , reference was made that the Commission ha d sent three separate lists i.e. of Agricultural stream on 12 28.09.1999, Mechanical stream on 06 .01.2000 and Civil stream on 07.1 1. 2000. The department had placed the candidates of the three lists in the same sequence as they were received with their inter se seniority in the ir respective lists . F or example, if there were 30 candidates in the Agricultural stream, all those candidates were placed on top at serial nos. 1 to 30 in the same order as it was received , if 20 candidates were in the Mechanical list then they were placed en blo c in the same serial as received from the Commission from serial no s. 31 to 50 and , if there were 50 in the Civil stream, they were place d below Mechanical with serial number s 51 to 100 again in the same sequence as forwarded by the Commission. g) The appellants came to know of this mode of preparation of the seniority list only after the publication of the final list on 05.03.2010 as prior to it they were under the bona fide belief that department had prepared seniority list inter se between all three streams as per the selection and result conveyed by the Commission. They were thus compelled to make representations to correct the seniority list by considering the inter se merit of all the three streams i.e. Agricultural , 13 Mechanical and Civil on the basis of the marks obtained in their examinations and forwarded by the Commission rather than preparing the seniority list in the order of receipt of the select list of the three streams. When no he ed was pai d to their representations , the appellants approached the Hig h Court by way of Writ Petition No. 53123 of 2012. h) As already recorded above , the Single Judge allowed the writ petition whereas the Division Bench dismissed the writ petition giving rise to the present set of appeals . Statutory Provisions: Rules 7. Before we proceed further , a broad outline of the relevant rules applicable for preparation of seniority may be referred to . First and foremost and most relevant is Rules 1991 framed under Article 309 of the Constitution . This w as in existence at the time when the selection of the appellants and respondents was made in 1998 -1999 . Part II of the said Rules deals with the determination of the seniority . Rule 5 thereof provides for seniority where appointments are made only by direct recruitment. The said Rule is reproduced hereunder: 14 “5. Seniority where appointments by direct recruitment only. - Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be : Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final : Provided further that the persons appointed on the result of a subsequent selection shall be junio r to the persons appointed on the result of a previous selection. Explanation. - Where in the same year, separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection. ” 8. A plain reading of the above provision stipulates that inter se seniority of the persons appointed as a r esult of ONE SELECTION would be on the basis of the merit list prepared by the Commission or the Committee , as the case may be. The C ommission means the Uttar Pradesh Public Service Commission and the Committee means the Committee constituted to mak e selection s for appointment . In the present case, it was the Commission which had made the selection s. 9. Rule 8 of Rules 1991 provides for preparation of seniority list where appointments were made both by promotion and direct recruitment. The said Rule reads as under: 15 “8. Seniority where appointments by promotion and direct recruitment . - (1) Where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub -rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order: Provided that if the appointment order specifies a particular back date, with effect from which a person is substanti vely appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean of issuance of the order: Provided further that a candidate recruited directly may lose his seniority, if he fails to join withou t valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final. (2) The seniority inter se of persons appointed on the result of any one selection - (a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be; (b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the pro motion are to be made from a single feeding cadre or several feeding cadres. (3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis -a-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources . 16 Illustrations (1) Where the quota of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order - First ... Promotee Second ... Direct recruits and so on. (2) Where the said quota is in the proportion of 1 : 3 the seniority shall be in the following order - First ... Promotee Second to Fourth ... Direct recruits Fifth ... Promotee Sixth to eight ... Direct recruits and so on: Provided that - (i) where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota; (ii) where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or year s, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments, are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees; (iii) where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota. ” 17 10 . The above Rule is pressed into service where a combined list of direct recruit s and promotees is to be prepared . However, even this Rule clearly provides in sub -Rule 2(a) that the seniority inter se of persons appointed on the result of any ONE SELECTION through direct recruitment shall be the same as it is shown in the merit list pr epared by the Commission or by the Committee, as the case may be. The language used and the manner provided is identical to Rule 5 where only seniority list of direct recruits is dealt with. 11. Part III of Rules 1991 deals with the preparation of seniority list. According to Rule 9, as soon as after the appointments are made, the appointing authority shall prepare a tentative seniority list, the same would be circulated amongst the persons concerned inviting objections. The appointin g authority, after disposing of the objections, would prepare final seniority list. Rule 9 is reproduced here under : “9. Preparation of seniority list. – (1) As soon as may be after appointments are made to a service, the appointing authority shall prepare a tentative seniority list of the persons appointed substantively to the service in accordance with the provisions of these rules. 18 (2) The tentative seniority list shall be circulated amongst the persons concerned inviting objections by a notice of reasonable period, which shall not be less than seven days from the date of circulation of the tentative seniority (3) No objections against the vires or validity of these rules shall be entertainable. (4) The appointing authority shall after disposing off the objection, by a reasoned order, issue a final seniority list. (5) It shall not be necessary to prepare a seniority list of the cadre to which appointments are made only by promotion from a single feedings cadre.” 12. In the year 2009, the Uttar Pradesh Minor Irrigation Department Subordinate Engineering Service Rules, 2009 (for short “Rules 2009”) came into force on 16.10.2009 again framed under Article 309 of the Constitution . Part V of Rule s 2009 provided for the procedure for recruitment which comprised of Rules 1 4 to 17 . Rule 15(4) provided that the Commission would prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate i n the written examination as well as interview and accordingly recommend such number of candidates as they consider fit for appointment. After preparation of the said list , the Commission would forward it to the Appointing Authority . Sub -Rule (5) of the 19 Rule 15 further provide s that if recruitment was being made for more than one branch of Engineering th en in such case , the Commission would prepare a combined select list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained b y the candidates in the written examination and interviews accordingly and shall also forward the same list to the Appointing Authority in addition to the list forwarded under Rule 15(4) . Rules 14 -17 of Rules 2009 are reproduced below: - “Rule 14 Determination of vacancies The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under rule 6. Rule 15 Procedure for Direct Recruitment (1) Applications for permission to appear in the competitive exam shall be called by the Commission in the prescri bed form published in the advertisement issued by the Commission. (2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission. (3) After the results of the written examination have been recei ved and tabulated, the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with rule 6, summon for interview such number of can didates as have come up to standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination. (4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examinations and 20 interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examinations shall be placed higher in the list. If two or more Candidates obtain equal marks in the written examination also, the name of the candidate a senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority. (5) If the recruitment is being made in more than one branch of Engineering as specified in clause (1) of rule 5, then in such the Commission shall als o prepare a combined list of candidates in order of the proficiency as disclosed by the aggregate of marks obtained by each candidate in written examination and interview and shall also forward the same to the appointing authority along with the list under sub rule (4) Rule 16 Procedure for recruitment by promotion Recruitment by promotion shall be made on the basis of seniority subject to the rejection of unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with the Public Se rvice Commission (Procedure) Rules, 1970, as amended from time to time. Rule 17 Combined Select list If, in any year of recruitment, appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of the candidates from the relevant lists, in such manner that prescribed percentage is maintained, the first name in the list being of the person appointed by promotion. ”Rule 21 Seniority Seniority of the persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Serv ants Seniority Rules 1991, as amended from time to time. 13. Apart from the above, Rule 21 thereof clearly provided tha t the seniority of all persons substantively appointed shall be determined as per Rules 1991 . Another relevant aspect of the said Rules 2009 was that all the three branches i.e. Agriculture, Civil 21 and Mechanical would together constitute one cadre of Subor dinate Engineering Service. Rule 21 is reproduced hereunder: Rule 21 Seniority Seniority of the persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules 1991, as amended from time to time. 14. Before Rules 2009 of the Minor Irrigation Department, there was another set of Rules framed in 1991 called the Uttar Pradesh Engineering Service (Minor Irrigation Department) Rules, 1991. These Rules dealt with the recruitment of Assistant, Executive, Superintendent and Chief Engineer of the department but not of Junior Engineer. As reference to these Rules has been made in the petition they have been mentioned , but may not be of much relevance. 15. On behalf of the appellants Shri Siddarth Dave, learned senior counsel and Ms Preetika Dwivedi, learned counsel have made submissions. On behalf of the private respondents Shri Gopal Sankaranarayanan, learned senior counsel and Shri Rohit Sthalekar, lear ned counsel have addressed the Court. Learned 22 counsel for the State of Uttar Pradesh and learned counsel for the Commission have also made their respective submissions. Appellants’ case : 16. O n behalf of the appellants , broadly the submission s made are given below : a) There is no delay on the part of the appellants in approaching the Court , as they learn t for the first time in 2010 when the final seniority list was published on 05.03.2010 that there were three separate select list s forwarded by the Commission and based upon the date of the receipt of such select list, the seniority list has been prepared , which was contrary to the statutory rules. b) As the challenge was to the decision -making process in making the seniority list contrary to the 1991 Seniority Rules and Rules 2009 , i t was submitted that it was not necessary to implead all the affected Engineers . In fact 18 of such affected Engineers were already impleaded in the writ petition and therefore , for all the affected Junior Engineers , their interests were already represented. 23 c) The second seniority list of 2009 -2010 had to be prepared as Rules 2009 ha d come into force which requi red drawing up of a fresh seniority list. A fresh seniority list having been published, the earlier seniority list would lose its significance . The challenge to the subsequent seniority list was within reasonable period . As such, the plea of delay raised by the respondents, would not have any substance. Respondents’ Case: 17. On behalf of the respondents , the submission of learned counsel are: (a) that the original writ petitioners i.e. appellants had approached the Court with extraordinary delay and therefore, the ir claim was not entitled to be entertained and the Division Bench of the High Court rightly upheld the said submission. (b) they sought to justify the judgment of the Division Bench for the same reasons as recorded b y the Division Bench ; (c) on merits it is submitted that the seniority list had been prepared in accordance with Rules 1991 and Rules 2009. 24 (d) there is no violation of any statutory provision in preparation of the seniority lists either of 2006 or 2010. Discussion: 18. It is an admitted position that there was one selection for the three streams i.e. Agricultural , Mechanical and Civil . It is also an admitted fact that there is one cadre of Junior Engineer s in the Minor Irrigation Department and therefore , there ha s to be one seniority list of Junior En gineers . The w ritten examination conducted by the Commission comprised of two papers , one compulsory for all streams and the second paper of the specific stream of Engineering whether Agricultural, Mechanical or Civil. So, in effect , there was one examination. Thereafter , interviews were conducted. The Commission , in its affidavi ts dated 07.04 .20 19 and 13.05.2019 filed before the High Court , had clearly state d that there was one selection for one examination. However, on account of s ome litigation and stay granted by the High Court the list of the stream of the Civil Engineering was sent much later after about 10 to 11 months. Commission also admitted in its supplementary counter affidavit before the High Court that it had not prepared a combined merit list of all the three 25 streams but had left it for the Appointing Authority to prepare the same. For sake of accuracy, paragraph s 6, 8, 9 and 10 of the supplementary counter affidavit dated 07.04.2019 filed on behalf of the Commission are reproduced below: “6. That it is noteworthy to state that during the selection process against the vacancies available in the Civil Branch, stay order dated 01.03.2000 was passed by the Lucknow bench of this Hon'ble Court in a writ petition no . l066 of 2000, Siyaram and others versus State of U.P. and others and therefore in compliance of or der dated 01.03.2000, recommendation was (sent to the department at a belated stage i.e. on 07 .11.2000. xxx xxx xxx 8. That since the required educational qualification was different for all three branches, therefore the recruitment was done separately an d thereafter the lists/recommendations were sent separately to the department in respect of selected candidates. 9. That it is further submitted that recruitment on the post of junior engineer is done from two main sources i.e. direct recruitment and depar tmental promotion therefore the inter -se seniority list shall be finalized in accordance with rule 8 of U.P. Government Servant Seniority Rules 1991. Therefore , the seniority list of the petitioners shall be finalized by the minor irrigation department onl y and there is no role of the answering respondent in preparation of seniority list by the minor irrigation department. 10. That it is further submitted that the preparation and publication of the seniority list of the junior engineers is the job of the concerned department and if any discrepancy occurs, the concerned department can clarify the same.” 26 19. Further paragraph s 3 to 7 of the second supplementary counter affidavit dated 13.05.2019 filed by the Commission read as under: “3. That it may be submitted before this Hon’ble Court that on the basis of requisition for recruitment of junior engineers for three branches i.e. Agriculture, civil and Mechanical in ratio of 50:30:20, made by the minor irrigation department, the answering responden t issued advertisement No. 3/1998 -99, whereby applications were invited from those candidates having requisite qualification in the relevant trade. 4. That it is categorically mentioned that the process of ‘election for all the three trades i.e. Civil, Me chanical and Agricultural was the same. There was a screening test conducted on 18. 10. 1998 and thereafter the qualified candidates were called for interview as per the rules and regulations. 5. That for the candidates who were called for interview in respect of Agriculture, Civil and Mechanical branch; the recruitment process was proceeded with, an interview was conducted respectively and out of said three1 branches, candidates were selected against the vacancies which were available in Agricultural and Mechanical Branch and select lists were sent to the department on 28.09. 1999 and 06.01.2000 respectively. 6. That it is noteworthy that during the selection process against the vacancies available in the Civil Branch, stay order date 1.03.2000 was passed by the Lucknow bench of this Hon’ble Court in Writ Petition no. l066 of 2000, Siyaram and others versus State of U.P. and others and therefore in compliance of order -dated 01.03.2000 recommendation was sent to the department at a belated stage i.e. on 07 .11.2000. 7.That further, the Commission has been able to trace the records of the selection process for all three branches i.e. Original Mark Sheet, Merit list etc. and the Commission is in a position to produce the same before the Hon’ble Court, as and when directed.” 27 20 . The Appointing Authority , in fact , committed an erro r in the manner in which the seniority list was prepared by placing the three select lists forwarded by the Commission on different dates one after the other en bloc as per the date of receipt of three select list s. It is not the case either of the private respondents , State or the Commission that appointment letters have been issued separately as and when the select list s were received. In fact, the appointment lette rs of all the three streams were issued in October 2001, after about 10 to 11 months of the receipt of the third list i.e. of the Civil stream in November 20 00 . Apparently by an oversight, the Appointing Authority failed to prepare the combined seniority list as required under 1991 Seniority Rules , be it Rule 5 or Rule 8 with respect to the selection of the appellants and private -respondents. 21. We may now discuss the law on the point regarding delay in approaching the court and in particular challenge to a seniority list. The learned Single Judge had placed reliance on a judgment of this Court in the case of Shiba Shankar Mohapatra vs. State of Orissa (supra). Dr. B.S. Chauhan, J., after considering the 28 question of entertaining the petition despite long standing seniority filed at a belated stage discussed more than a dozen cases on the point including C onstitution B ench judgments and ultimately in para graph 30 observed that a seniority list which remains in existence for more than three to four years unchallenged should not be disturbed. It is also recorded in para graph 30 that in case someone agitates the issue of seniority beyond period of three to four years he has to explain the delay and laches in approaching the adjudicatory forum by furnishing satisfactory explanation. Paragraph 30 is reproduced below : - “30. Thus in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid d own, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3 -4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority be yond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation. ” 22. On the other hand, the D ivision Bench while shutting out the appellant s on the ground of delay reli ed upon followi ng judgments of this Court. 29 • Dayaram Asanand Gursahani v s. State of Maharashtra and others 2 • B.S. Bajwa and another v s. State of Punjab and others 3 • Malcom Lawrence Cecil D’Souza v s. Union of India and others 4 • R.S. Makashi and others v s. I.M. Menon and others 5 23. In the case of Dayaram Asanand Gursahani (supra) , there was a delay of 9 years. In the case of B.S. Bajwa (supra) , there was a delay of more than a decade. In Malcom Lawrence Cecil D ’S ouza (supra) , the delay was of 15 years and in R .S. M akashi (supra) there was a delay of 8 years. In all these cases, this court has recorded that the delay has not been explained. Shi ba Shankar M ohapatra (Supra) is a judgment of 2010, which has laid down that, three to four years would be a reasonable period to challenge a seniority list and also that any challenge 2 (1984) 3 SCC 36 3 (1998) 2 SCC 523 4 (1976) 1 SCC 599 5 (1982) 1 SCC 379 30 beyond the aforesaid period would require satisfactory explanation. 24. In view of the above legal proposition, we now examine the facts of the present case, firstly, as to whether there was delay of more than three to four years and secondly, if there was delay of more than three to four years, whether the same has been satisfactorily explained . 25. In October, 2001, when the appointment letters were issued it carried a stipulation that the seniority would be determined later on as per rules. It is an admitted position that before 2006, the seniority list of the appellant s was not notified. In March, 200 6, when the tentative list was published, it did not mention about the three select list s nor was this fact mentioned when the final seniority list was published on 05.09. 2006 . Rather , it clearly mentioned that the seniority list had been prepared on the basis of merit . This was in fact an incorrect statement. The seniority list ha d not been prepared on the basis of merit but on the basis of receipt of the three separate select list s one after the other. As the Agricultural list w as received first on 28.09. 1999 , all the selected 31 candidates of agricultural stream were en bloc placed on the top , thereafter the Mechanical list was received on 06.01.2000 , they were placed below the Agricultural stream and lastly , the Civil stream list was received on 07.11.2000, they were placed at the end. 26. R ule s 5 and 8 of Rules 1991 clearly mention that there shall be one list for one selection of direct recruits . Creating three separate list s for one selection wa s contrary to the provisions contained in Rule s 5 and 8 of Rules 199 1. Rules 2009 clearly mention that seniority would be determined and prepared as per 1991 Rules. Rule 5 of Rules 1991, dealt with the selection s made only through direct recruitment whereas Rule 8 thereof dealt with the situation where seniority list is to be prepared of both the direct recruits and the promotees. However, the principles underlined in both the se Rules ar e the same that there has to be one list for one selection , a s is clear from Rule 8( 2)(a) and Rule 5 of Rules 199 1. 27. On ce it is establish ed that the seniority list was prepared in contravention to the statutory provisions laid down in Rules 1991, the seniority list could be interfered with. The Appointing Authority 32 would be bound by the statutory rules and any violation or disregard to the statutory rules would vitiate the seniority list. The same would be arbitrary, de hors the rules and in conflict with Articles 14 and 16 of the Constitution. The only exception to the above would be where there is unreasonable delay which is unexplained . 28. In the present case, if we accept the submission of the appellants then the delay at best could be a few months or a year however, if we accept the contentions of the private respondents then the delay could be of five years. In the first contingency , no explanation would be required . H owever, in the second contingency, if the appellants are successful in satisf actori ly expla ining the delay, then even this hurdle could be overcome. In th e facts of the present case what we find from the final seniority list of 05.09.2006 is that it nowhere mentioned that there were three separate lists of separate streams and that they were received on different dates. On the contrary, there was a recital therein and specific averment to the effect that the list ha d been prepared on the basis of merit . Thus, it cannot be said that the appellants were aware of the three separate select list s dispatch ed by the 33 C ommission on three diff erent dates at the time o f publication of final list dated 05.09.2006. 29. It would also be worthwhile to mention here that the appellants had no occasion to know about the three s eparate list s either at the time they were dispatched by the C ommission or at any time thereafter as the appointment letters of all selected candidates of all the three streams were issued simultaneously under O ffice O rder dated 08.10.2001. It would also be relevant to mention that the order finalizing the seniority list of 05. 09. 200 6 also nowhere mentioned that three separate lists of three streams were received from the C ommission and placed en bloc as received one after the other. 30 . At the time of notifying the tentative list on 29.12.2009, it was not stated anywhere that there were three separate lists received on three diff erent dates. As such it could not be alleged that the appellants even at that stage did not file objections regarding preparation of common seniority list. It was only when the fina l seniority list was published on 05.03.2010 and in the order finalizing the list , it was mentioned by the dep artment that there 34 were three separate lists received on three separate dates and in that sequence the combined seniority was prepared . Thus, it i s for the first -time that appellant s came to know of the error on publication of the final seniority list on 05.03.2010. 31. The respondents have not been able to show any material which could clearly indicate that the appellants had knowledge of three separate lists and the preparation of the seniority list on its basis . A frail attempt has been made by the respondents referrin g to office order dated 17 .03.2006 Annexure -P-30 to the Appeal @ SLP(C) No. 5435 of 2020 which is the order notifying the tentative seniority list. Para graph 3 thereof mentions that the sequence whereunder the selection list of Junior E ngineers selected by the C ommission has been received , the seniority has been given in th at sequence. Para graph 3 reads as under: “3: The sequence, where under the selection list of the Junior Engineers selected by the Commission has been received, in that sequence, the Seniority has been given in accordance with Seniority detailed therein. ” 32. A reading of the above para graph does not refer to any details either of any stream, the year of selection , the selection being made on the basis of which advertisement or the dates on which separate 35 lists were received. It is a general statement. This submission of the respondents stand s completely diluted in view of the facts recorded in para graph 5 and last sentence as contained in para graph 25 of the same office order dated 05.09.2006. We will analyse the same but before that they are reproduced hereunder : “5. Shri Vinod Kumar Singh has requested to enter his Name in the Seniority List and requested to grant Seniority in ratio of 50:30:20 to the Agriculture/ Mechanical/ Civil Engineering. In this regard, it is clear that the above ratio is only for recruitment. From Commission, on 6.01.20 00 , on 27.01.2000 and on 07.11.200 0 list was sent. Therefore, in this sequence, on the basis of merit, the Seniority has already been assessed. Name of Shri Vinay Kumar has been entered at the required place in the Seniority List as his Name was left to be entered therein and as requested to increase and enter his Name in this Seniority List. xxx xxx xxx xxx xxx 25. “...The Seniority of the candidates selected from the Public Service Commission have been kept in their Serial of merit.” 33. Reading of para graph 5, it is again mentioned that three lists were received by the C ommission and in that sequence, on the basis of merit, the seniority has been assessed. Para graph 5 was dealing with objection of one Vinod Kumar Singh requesting to enter his name in the seniority list and further requesting to grant seniority in the ratio of 50:30:20. The competent authority allowed 36 the request finding that the name of Vinod Kumar Singh was left to be entered and accordingly it was incorporated at the req uired place. Further, the last sentence of this office order clearly mentions that the seniority of the candidates selected from the C ommission ha s been kept in their serial of merit. It does not refer to any separate merit being considered for preparing t he seniority list of the three separate streams . 34. After coming of Rules 2009, fresh exercise was undertaken for preparation of seniority list. A tentative list was notified by the Office Order dated 29.12.2009. This Office Order mention s that the seniority list has to be prepared according to 1991 Rules. While dealing with the finalization of this tentative list, vide office order dated 05.03.2010, we find reference to disposal of an objection by Mahesh C hand B agani and Mahesh Kumar in which they had apparently sought clarification regarding the requisition send to the C ommission and other related aspects. In para graph 11 of the Office Order , it is mentioned that the C ommission had forwarded the three list s of the Agriculture, Mechanical and C ivil stream s separately on 06.01.2 000, 27.01.200 0 and 07.11.2000 respectively. It further mentioned that it was in that sequence i.e. 37 the date of receiving that the combined seniority was assessed. Thus, again the seniority list was finalized in the same sequence as the three lists have been received and in that order. It is thereafter that the representations were made that the seniority list of the direct recruits of 2001 was wrongly prepared contrary to the Rules, however, when no action was taken, Rajiv Na in Upadhyay and fourteen others approached the High Court by way of W.P. No. 53123 of 2012 in October 2012 which was within a period of two to two and half years and till such time they ha d been pursuing their re presentation after office order dated 05.03.2010 . From the above facts, it is clear that in the first contingency or in the second contingency , the appellant s cannot be found at fault. The D ivision Bench committed an error in holding that the claim lodged by the appellant suffered from delay and laches . 35. The plea to defend the seniority list prepared contrary to the statutory provisions on the ground of delay would be a difficult proposition. Apart from the submission of the appellants that there is no delay a s they came to know of the three separate lists only in March, 2010 , even if it is assume d that there was some delay and a fresh seniority list was being prepared in 2009 -2010 again 38 contrary to the provisions of statutory rules , such seniority list cannot be sustained or defended on the ground of delay of five years. 36. It is also admitted by the parties that the next promotion of Junior Engineers in the higher grade is to the post of Assistant Engineer . In the cadre of Assistant Engineer , there are no separate streams but only one cadre of Assistant Engineers. It is the seniority list of the cadre of Junior Engineers which would be the feed er cadre for the post of Assistant Engineers. The Junior Engineers of Agricultural stream of the selection of the year 2001, would have direct march over the Junior Engineers selected in the same selection of the Mechanical and C ivil streams , even though the overall merit of some or many of Agricultural stream Junior Engineers could be l owe r th an some or many of the Engineers of the Mechanical and Civil streams . The appointing authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission . Otherwise, it w ould amount to denial of the right of consideration for promotion to a more meritorious candidate as against a candidate having 39 lesser merit. Right to promoti on is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right. 37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right , as was held by K. Ramaswamy , J., in the case of Director, Lift Irrigation Corporation Ltd. and Others v s. Pravat Kiran Mohanty and Others 6 in paragraph 4 of the report which is reproduced below: “4… There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.” 38. A Constitution Bench in case of Ajit Singh vs. State of Punjab 7, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her’s funda mental right . Jagannadha Rao, J. speaking for himself and 6 (1991) 2 SCC 295 7 (1999) 7 SCC 209 40 Anand , C JI. , Venkataswami, Pattanaik, Kurdukar , JJ ., observed the same as follows in paragraphs 21 and 22 and 27 : “21: Articles 14 and 16(1): is right to be considered for promotion a fundamental right 22: Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that clause (1) of Article 16 i s a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion o r who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for p romotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right. "Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Art icle 16(1) xxxx xxxx xxxx xxxx xxxx 27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to eq ual opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950.” 41 39. This Court in Major General H.M. Singh, VSM v s. UOI and A nother 8, again reiterated the legal position, i.e. right to be considered for promotion as a fundamental right enshrined under Article 14 and Article 16 of the Constitution of India. The relevant extract from paragraph 28 is reproduced below: “28. The question that arises for consideration is, whether the non -consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the vacancy of Lieutenant -General, when it became available on 1 -1-2007. The factual position depicted in the counter -affidavit reveals that the respondents inde ed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major -General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being consid ered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presiden tial Order dated 29 -2-2008, and thereafter, by a further Presidential Order dated 30 -5-2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant -General (in case the recommendat ion made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant -General would have resulted in violation of his fundamental right under 8 (2014) 3 SCC 670 42 Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary.” 40 . If the seniority list is allowed to be sustained th en the engineers who are more meritorious in the Mechanical and Civil streams than the Junior Engineers of the Agricultural stream would be deprived of their right of being considered for promotion and in fact the ir right would accrue only after all the Junior Engineer s of the Agricultural stream selected in the same selection are granted promotion. For these reasons also the seniority list in question must go. 41. The other ground taken by the H igh Court for non -suit ing the appellants were that they had not impleaded all the affected J unio r Eng ineers. For the said proposition, the Division Bench of the High Court has placed reliance upon judgment of this C ourt in the case of Ranjan Kumar and Others vs. State of Bihar and Others 9. The above case was in respect of selection and appointment on the ground that the same had been made only on the basis of interview without holding any written test. The High Court had quashed such selection and appointments even of those appointees who 9 (2014) 16 SCC 187 43 wer e not even parties to the petition . It was in these circumstances that this Court held that the appointments of non -parties could not be quashed. Facts of the said case are clearly distinguishable. 42. The D ivision Bench of the High Court also relied upon another judgment of this Court in Prabodh Verma and others v s. State of Uttar Pradesh and others 10 . This case again related to challenge to appointments and in the said case there was no impleadment even in the representative capacity. In such circumstances, this Court said that the petition was liable to be dismissed for non -joinder of necessary parties. In fact , this judgment helps the appellants. Paragraph 50 thereof is reproduced below: “50 (1): A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non - joinder of necessary parties.” 43. The third case relied upon by the D ivision Bench for the above proposition namely State of Uttaranchal vs. Madan Mohan Joshi 10 (1984) 4 SCC 251 44 and others 11 was again a case where none of the affected parties were impleaded not even in the representative capacity. In such circumstances, th is Court remanded the matter to the High Court leaving it open to the original petitioner s therein to move an appropriate application for impleading some of the affected teachers in their representative capacity . 44. The fourth case relied upon by D ivision Bench on the above proposition is Indu Shekhar Singh and others vs . State of U.P. and others 12 . In this case also, the affected parties were not impleaded and this Court relied upon the judgment of this Court in Prabodh Verma (supra) . 45. In the case of Tridip Kumar Dingal and others v s. State of West Bengal and others 13 , C .K. Thakker, J., held that the case falls within the ambit of non -joinder of necessary parties as none of the 66 candidates against whom the complaint was made , were made parties . It further held that some of the respondents should 11 (2008) 6 SCC 797 12 (2006) 8 SCC 129 13 (2009) 1 SCC 768 45 have been arrayed in representative capa city. Paragraph 41 is reproduced below: “41: Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the employment exchange and they were selected and appointed in 1998 -1999. The candidates who were unable to get themselves. selected and who rais ed a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the original application, which was not done. In any case, some of them ought to have been arrayed as responden ts in a "representative capacity". That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set asid e.” 46. In the recent case of Mukul Kumar Tyagi and Ors. v s. The State of Uttar Pradesh and Ors., 14 Ashok Bhushan , J. , laid emphasis that when there is a long list of candidates against whom the case is proceeded, then it becomes unnecessary and irreleva nt to implead each and every candidate. If some of the candidates are implead ed then they will be said to be representing the interest of rest of the candidates as well. The relevant portion of paragraph 75 from the judgment is reproduced below: “75 …… We may further notice that Division Bench also noticed the above argument of non -impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argume nt. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermo re, when select list contained names of 2211 14 (2020) 4 SCC 86 46 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ pe titions in representative capacity.” 47. The present case is a case of preparation of seniority list and that too in a situation where the appellants (original writ petitioners) did n ot even know the marks obtained by them or the ir proficiency in the examination conducted by the C ommission. The challenge was on the ground that the R ules on the preparation of seniority list had not been followed. There were 18 private respondents arrayed to the writ petition. The original petitioner s could not have known who all would be affected. They had thus broadly impleaded 18 of such J unior Eng ineers who could be adversely affected. In matters relating to service jurisprudence, time and again it has been held that it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affec ted persons in their representative capacity. Non -joining of all the parties cannot be held to be fatal. 47 48. The D ivision Bench has also dealt with an issue which according to us was totally irrelevant and alien to the adjudication of the present appeal s. In para graph 45 of the judgment of the D ivision Bench there is a reference to an issue where a party takes calculated chances o f participating in selection/appointment process and later turns around after being unsuccessful would be hit by doctrine of estoppel. For the said proposition, the D ivision Bench ma de detailed discussions in para graphs 46, 47, 48 and 49 of the judgment and relied upon a number of case laws. In our considered view, th is issue was not at all relevant . The said issue does not arise in the present case . The appellants/original writ petitioners had never challenged the selection process. The challeng e was only to preparation of the seniority list. As such, t his discussion by the Division Bench is totally irrelevant. 49. The D ivision Bench further in para graph 51 had in a generalized and vague manner recorded that the authorit ies relied upon by the learned single Judge w ere rendered in a different fact situation and were not applicable. The D ivision B ench did not consider the judgments relied upon by the learned Single Judge 48 but only made this passing remarks. What we find is that the authorities relied upon by the learned Single Judge were relevant and correctly applied. 50 . Further, the D ivision B ench in para graphs 51, 52, 53 proceeded to deal with the delay stating it to be 11 years, the basis for calculation of 11 years was that the seniority list of 2006 was challenged by way of amendment by the appellants in the ye ar 2017 and therefore there was a delay of 11 yea rs. This discussion by D ivision Bench also cannot be sustained. The first seniority list was prepared in 2006 . It was not disclosed as to how the seniority list has been prepared by treating the three separate lists independently on their merits but not as a result of combined merit of the three lists. It was only in 2010 that the appellants came to know of the fallacy and soon thereafter they challenged the seniority list of 2010. Even if, they did not challenge the seniority list of 2006, 2010 seniority l ist could always be revisited , reviewed and prepared afresh, if the same was quashed. The appellants could not have been at any loss even if they had not challenge d the 2006 seniority list. 49 51. The reasoning given in para graphs 54, 55, 56 regarding issue of single selection is also not sustainable in view of Rules 1991 as also Rules 2009. 52. Lastly, para graph 57 of the judgment of the D ivision B ench which deals with R ule 5 and 8 of 1991 R ules , w e may only re iterate that , whether it was R ule 5 which was applicable or R ule 8 which wa s applicable , the seniority inter se of direct recruits to one selection has to be one combined list based on the performance and the marks awarded in the examination prepared either by the C om mission or the C ommittee , as the case may be. True, the learned Single Judge , in the operative portion mention ed that a fresh seniority list be prepared in accordance with R ule 5 and apparently did not consider the effect of R ule 8, would not vitiate the judgment in asmuch as the basis for preparation of the seniority list of direct recruits was the same in both the Rules . It may be noted that there is no lis inter se between direct recruits and promote es. 53. For all the reasons recorded above, we find that the Division Bench f ell in error in allowing the appeal and dismissing the writ 50 petition. The learned Single Judge was right in his view in setting aside the final seniority list and directing the appointin g authority for preparation of fresh seniority list in accordance with Rules 1991 , be it Rule 5 or Rule 8 thereof. 54. The appeal s are , accordingly , allowed. The impugned judgment of the Division Bench of the High Court dated 04.12.2019 is set aside and that of the Single Judge dated 14.05.2019 is maintained. 55. There shall be no order as to costs. 56. Pending application(s), if any, is/are also disposed of accordingly. ………….......... ....... .........J. [DR. D.Y. CHANDRACHUD] …………............... ....... ...J. [VIKRAM NATH] …………...... ....... .............J. [B.V. NAGARATHNA] NEW DELHI DEC EM BER 08 , 2021.