Point of Law : There is no question why Court should come to rescue of such persons, when they themselves are guilty of acquiescence and waiver.

JUDGMENT :

Tarlok Singh Chauhan, J.

1. The instant petition has been filed for grant of the following substantive reliefs:-

“a) That the instructions issued vide letter dated 30.1.2018, Annexure P-12, and letter dated 25.2.2019, Annexure P-15, may kindly be read down/struck down to the extent these instructions run counter to the verdict of this Hon’ble Court in the judgments rendered in the cases of VK Behl (Annexure P-8), Vinod Kumar Bisht (Annexure P-9) and Baljeet Singh (Annexure P-10).

b) That the seniority assigned to the respondent No.3 as Assistant Engineer vide letter dated 4.11.2008, Annexure P-6, by taking into account his army service on the basis of Rule 5(1) of the Ex-Servicemen (Reservation of vacancies in Himachal Pradesh Technical Services Rules, 1985, Annexure P-2, which has already been read down by this Hon’ble Court in the judgment rendered in the cases of Vinod Kumar Bisht (Annexure P-9) and Baljeet Singh (Annexure P-10) by placing reliance on judgment in the case of VK Behl(Annexure P-8), may kindly be quashed and set aside.

Consequently, promotion granted to the petitioner as Executive Engineer vide notification dated 9.5.2011, Annexure P-7 and as Superintending Engineer vide notification dated 29.8.2017, Annexure P-11, may also be quashed and set aside;

c) That the respondent department may be directed to hold review DPC(s) for promotion to the post of Executive Engineer and Superintending Engineer on the basis of fresh seniority list in consonance with the judgments of this Hon’ble Court at Annexures P-7 to P-9, and the petitioners, may be held entitled to all consequential benefits as a result thereof.”

2. However, before arguments on merits of the case could be heard, learned Advocate General as also learned counsel for respondent No.3 raised preliminary objections regarding maintainability of this petition, more particularly it being barred on the grounds of delay and laches as also acquiescence and waiver.

3. We have heard the learned counsel for the parties and have gone through the pleadings and material placed on record.

4. This Court, at this stage, is required only to look into the undisputed facts which can be enumerated as under:-

(i) The petitioners were appointed as Assistant Engineers in the years 1996 and 1997, respectively, whereas, respondent No.3 was appointed as an Assistant Engineer against a vacancy reserved for Ex-Servicemen under the Technical Service Rules, 1985, subsequent to the petitioners vide notification dated 08.03.2000 and joined on 13.03.2000.

(ii) The final seniority list of the Assistant Engineers (Civil) as on 30.06.1997 was circulated vide letter dated 20.08.1997 and thereafter respondent No.3 was appointed as Assistant Engineer against a vacancy reserved for Ex-Servicemen vide notification dated 08.03.2000 and he joined on the said post on 13.03.2000.

(iii) The final seniority list of Assistant Engineers (Civil) as on 30.06.1997 was quashed by the H.P. Administrative erstwhile Tribunal vide its order dated 16.05.2002 passed in O.A. No. 1940 of 1997 titled Kuldeep Rao and others vs. State of H.P. and others and the seniority list issued on 01.09.1995 was restored.

(iv) Later, vide letter dated 07.08.2006, the respondents issued a provisional seniority list of Assistant Engineers(Degree Holders) (Annexure P-4) as on 31.05.2006 wherein respondent No.3 was shown below the petitioners at Sr. No. 158. However, vide notification dated 23.04.2007 (Annexure P-5), respondent No.3 came to be promoted to the post of Executive Engineer (Civil) on ad hoc basis.

(v) Thereafter, vide letter dated 04.11.2008 final seniority list of Assistant Engineer(Civil) (Degree Holders) as on 31.05.2006 was circulated wherein respondent No.3 was now shown above the petitioners at Sr. No. 45.

(vi) In the meantime, the High Court decided the case of S.S. Kutlehria vs. State of H.P. and the said judgment w