The main legal point established in the judgment is the discretionary power of the court to provide consequential relief under Article 226, considering the delay and the availability of such relief.

DAYA CHAUDHARY, J.

1. The prayer in the present petition is for issuance of a writ in the nature of certiorari for quashing of final seniority list dated 29.12.1997 (Annexure P-5). A further prayer has also been made for issuing directions to the respondents to issue fresh seniority list by placing the petitioners senior to respondent No.3 and for grant of all consequential benefits.

2. Briefly, the facts of the case, as made out in the present petition are that an advertisement was issued by respondent-Department on 25.5.1988 for filling up the posts of Assistant Environmental Engineers. In response to aforesaid advertisement, the petitioners as well as respondent No.3 applied for the said post. Thereafter, the petitioners as well as respondent No.3 appeared in the written test and qualified the same. Then they all appeared in the interview conducted by the respondent-Department and were selected and appointed as Assistant Environmental Engineers. Respondent No.3 was placed below the petitioners in the merit list prepared by the Selection Committee. A tentative seniority list of Assistant Environmental Engineers was circulated on 15.12.1995. As per said seniority list, respondent No. 3 was shown at Sr. No.17, whereas, petitioners No.1 and 2 were shown at Sr. No. 19 and 18, respectively. The petitioners filed objections against the aforesaid tentative seniority list but the same were rejected by the respondent-Department and a final seniority list was issued on 29.12.1997, which is subject matter of challenge in the present petition.

3. Mr. Rajiv Atma Ram, learned senior counsel for the petitioners contends that respondent No.3 had wrongly applied in the category of Ex-serviceman, whereas, he was ward of an Ex-serviceman. As per instructions dated 8.4.1982 in case the reserved vacancy remains unfilled on account of non-availability of a suitable Ex-serviceman, the vacancy may be temporarily filled up from any other source but the certificate of non-availability of Ex-serviceman is required to be obtained from the Department of Defence Services Welfare, Punjab. Learned senior counsel further submits that there was no reservation for Ex-serviceman and as such no benefit of military service could be granted to the candidate towards seniority. As per Regulation 12 of the Employees Service Rules (Regulations), 1980 (hereinafter referred to as 'the Rules, 1980'), the seniority is to be determined by the date of substantive appointment. The petitioners were appointed on 8.2.1989 and 9.2.1989, whereas, respondent No.3 was appointed on 9.2.1989. Petitioner No.1 joined services on 10.2.1989 and petitioner No.2 on 14.2.1989, whereas, respondent No.3 joined on 17.2.1989. Learned senior counsel also submits that both the petitioners were higher in order of merit and were senior to respondent No.3. It is also the argument of learned senior counsel that the period of limitation required for filing of civil suit cannot be considered while filing petition under Article 226 of the Constitution of India. The roster point promotion does not confer any right of seniority as the seniority is to be fixed from the date of appointment or continuous length of service. At the end, learned senior counsel submits that the action of respondent-Department in considering respondent No.3 senior to petitioners is not only arbitrary but contrary to law as well specially when no reason whatsoever has been mentioned while rejecting the claim of the petitioner. Learned senior counsel has also relied upon the judgments of Hon'ble the Apex Court in the case of State of M.P. Vs. Bhailal Bhai 1964 AIR (SC) 1006, Ajit Singh Vs. State of Punjab 1999 AIR (SC) 3471, Bimlesh Tanwar Vs. State of Haryana and others 2003 (2) S.C.T. 361, Haryana Public Service Commission Vs. Harinder Singh 1999 (2) S.C.T. 298, of this Court in Jai Bhagwan Vs. Deputy Director, Sheep Production, Animal Husbandry Department, Hisar 2003 (6) SLR 614, M/s Shiv Shakti Foods Vs. State of Haryan