Raman Nayar, C.J:— The order referring this case to a Full Bench reads thus:

“An important question which frequently arises in service matters and on which it would appear two views are possible here arises. It is whether a person whose seniority in a lower grade has been wrongly fixed with the result that another who is really his junior is promoted over him to a higher grade (the promotion being on the basis of seniority only) and who has not questioned the promotion can on the seniority in the lower grade being corrected, claim the promotion which has already gone to his junior.

2. We refer this case to a full bench.” In December 1955, the Travan-Core-Cochin Public Service Commission “advised” the petitioner, the 4th respondent and the 3rd respondent, in that order, for appointment as lower division clerks in the State Insurance Department of the Travancore-Cochin Government. (The reference is to the parties as they stand arrayed in the writ petition, O.P No. 2131 of 1966, out of which this appeal arises—the 1st respondent to the petition is the State Insurance Officer; and the second, the State of Kerala). They were accordingly appointed in that order in 1956, the petitioner first the 4th respondent next and the 3rd respondent third. The 3rd respondent passed the account test first, in May 1958, the 4th respondent next, in March 1959; and the petitioner last, in December 1959. This test, it is the common case is obligatory for promotion from the lower division to the upper division: but, as to whether it is an obligatory test for confirmation in the lower division is a matter in controversy, the case of the petitioner being that it is not and of the respondent that it is. However, as we shall see, that is really of no consequence.

3. The department, apparently acting in the belief that the test was an obligatory test for confirmation, confirmed the 3rd respondent first with effect from 6-5-1958 the 4th respondent next with effect from 31-3-1959 and the petitioner last with effect from 3-5-1960. (The dates given are the dates stated at the bar at the hearing of the appeal. In some cases they do not conform exactly with the dates as disclosed by the pleadings and the exhibits, but the discrepancies are not material). The department also seems to have thought that seniority in the lower division was determined by the date of confirmation therein, for, in the gazette of the 10th October, 1961, it published a gradation list of lower division clerks showing the 3rd respondent as senior to the 4th respondent and the 4th respondent as senior to the petitioner. The principle for promotion from the lower division to the upper division and from the upper division to the next higher category, namely, the category of Junior Superintendents/Claims Inspectors (which we shall hereafter call the superintendents was, as the rules then stood, seniority unless promotion had been withheld as a penalty, and apparently in accordance with the seniority as shown in the gradation list, the 3rd respondent was promoted first to the upper division on the 13th August, 1958 the 4th respondent next on the 15th July, 1959, and the petitioner last on the 6th July, 1960. It does not appear from the pleadings, but it was stated at the bar after verification, that none of them has yet been confirmed in the upper division. However, acting on the basis of their apparent relative seniority in the upper division, they were promoted to the category of superintendents, the 3rd respondent first on the 13th March, 1962, the 4th respondent next on the 25th April, 1962 and the petitioner last on the 2nd July, 1963, They are all now aspiring for promotion (perhaps, strictly speaking, recruitment by transfer) to a higher port for which their relative seniority in the category of superintendents would count, although it might not be the determining factor, since it would appear that the higher post is what is commonly called a selection post. The real dispute between these parties is as to their relative seniority in the superintendents category, the petitioner's case being that he should be first, and, although he is not really concerned with that, the 4th respondent second and the 3rd respondent last.

4. Although in the gradation list published in the gazette of the 10th October, 1961 the petitioner was shown as junior to both the 3rd and the 4th respondents, he did nothing about that until the 4th August, 1962 when he submitted the petition, Ext. C-1, to the Government. It will be recalled that at that time he was still only in the upper division, whereas respondents 3 and 4 had been promoted to the superintendents category, the former on the 13th March, 1962 and the latter on the 25th April, 1962. Yet, the petitioner did not question those appointments, namely, the appointment of the 3rd and the 4th respondents to the superintendents category. He was content with complaining against the earlier confirmation of respondents 3 and 4 in the lower division and the earlier promotion of respondents 3 and 4 to the upper division, and his prayer was that orders may be passed restoring his seniority over the 3rd and 4th respondents which, since he was at the time holding only the post of an upper division clerk, could at best only have meant seniority in the upper division. His prayer was rejected by the Government by the order, Ext. P-3 dated the 30th January, 1963, which affirmed that respondents 3 and 4 had been rightly confirmed earlier in the lower division and argued therefrom that the request of the petitioner for restoration of rank was without merit.

5. Against this rejection ordered by Ext. P-3, the petitioner came to this Court on the 31st March, 1963 with the petition, Ext. C-2. That was before his own promotion to the superintendents category in July 1963 and while respondents 3 and 4 who had been promoted to that category in March and April 1962 were holding posts in that category. Nevertheless, the petitioner did not question the promotion of respondents 3 and 4 to that category and was once again content with agitating his delayed confirmation in the lower division and the earlier promotion of respondents 3 and 4 to the upper division. His prayer was to treat him as senior to respondents 3 and 4 in the upper division and to assign his present rank (which could only mean his rank as an upper division clerk which was the post he was holding) on that basis. By the order, Ext. P-4 dated 24-11-1964, this Court quashed the order, Ext. P-3, made by the Government rejecting the petitioner's petition, Ext. C-1. That was on the ground that the Government in rejecting the petitioner's claim had failed to consider certain relevant Government orders, and the Government was directed to consider the matter afresh and pass appropriate orders. After considering the matter afresh, the Government passed the order, Ext. P-5 dated 31-3-1966, once again rejecting the petitioner's claim. It is to quash this order (Ext. P-5) that the present writ petition was brought.

6. The material prayers in the present petition are:

“(a) to issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext. P-3 and Ext. P-5 orders of the 2nd respondent and quash the same:

(b) to issue a writ of mandamus or other appropriate writ direction or order calling upon the respondents 1 and 2 to treat the petitioner as confirmed from the date on which Shri M.P Rama-krishnan Nair was confirmed i.e 4-5-1959;

(c) to issue a writ of mandamus or other appropriate writ direction or order to treat the petitioner as senior to respondents 3 and 4 in the lower division clerks cadre, in the upper division clerk cadre and now in the Claims Inspector's cadre in the State Insurance Department and assign to the petitioner rank (on) such basis.”

7. The learned single Judge who heard this petition came to the conclusion that the relevant rules and relevant aspects of the matter had not been considered by the Government when it passed the impugned order. Ext. P-5, and that the reasons stated in the order could not stand. Therefore, he quashed the order and directed the Government to consider the whole question afresh in the light of what was stated in his judgment and pass appropriate orders. It is against this that this appeal by the 3rd respondent has been brought.

8. As we said at the outset, what really concerns the petitioner and respondents 3 and 4 is their relative seniority in the category of superintendents. They are all looking upwards, not downwards, for, none of them is in danger of reversion. Their confirmation in the lower division and their relative seniority in that division and in the upper division are of no consequence to them except in so far as these factors might bear upon their seniority in the category of superintendents. The essential relief the petitioner claims is the declaration of his seniority in the category of superintendents over respondents 3 and 4; all other reliefs he has claimed are but steps leading to this relief.

9. This then, namely, their relative seniority in the category of superintendents, is the matter really in issue between the parties and this issue, it is not disputed, is to be determined in accordance with Rule 27 in Part II of the Kerala State and Subordinate Services Rules, 1958. (These Rules came into force on the 17th December, 1958; they apply to the holders of posts whether appointed before or after that date except to the extent otherwise expressly provided by or under any law for the time being in force—see Rule 1 in Part II; and the savings in Rule 35 cannot apply in respect of the relative seniority of the petitioner and respondents 3 and 4 in the “superintendents” category since all of them came into that category only after the rules had come into force—not that any previous rule or order contrary to Rule 27 has been brought to our notice). That rule reads thus:

“27. Seniority.—(a) Seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his appointment to such service, class, category or grade. If any portion of the service of such person does not count towards probation under the Rules, his seniority shall be determined by the date of commencement of his service which counts towards probation.

(b) The appointing authority shall, at the time of passing an order appointing two or more persons simultaneously to a service, fix the order of preference among them; and seniority shall be determined in accordance with it:

Provided that nothing contained in sub-rules (a) and (b) above shall be deemed to have superseded the orders of the Travancore-Cochin Government in R. Dis. No. 8207/50.CS dated 7th May, 1951 as subsequently clarified in respect of any person who was a member of any service on the date of coming into force of these rules.

(c) Notwithstanding anything contained in clauses (a) and (b) above, the seniority of a person appointed to a class category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list.

Note: The date of effective advice in this Rule means the date of the letter of the Commission on the basis of which the candidate was appointed.”

10. The question on hand is governed by clause (a) of this rule. In other words, the relative seniority of the petitioner and respondents 3 and 4 in the category of superintendents is determined by the date of the order of their first appointment to that category. The 3rd respondent having been appointed earliest to that category, the 4th respondent next and the petitioner only last, it follows that in terms of the rule that is their order of seniority in the category so long as the appointments stand. The earlier appointment of respondents 3 and 4 to the category was, at no stage, questioned by the petitioner; nor has he questioned it now. And that being so, those appointments must stand; and the petitioner's prayer that he be declared senior to respondents 3 and 4 is clearly untenable.

11. It is said that, once the petitioner's seniority over respondents 3 and 4 in the upper division is declared, that would automatically involve the setting aside of the earlier promotion of respondents 3 and 4 to the category of superintendents and an earlier promotion for the petitioner with the resulting seniority that would carry, the rule for promotion being seniority and no imponderable element like relative merit or even fitness coming into play. We cannot agree. Seniority in the lower category is by no means the same as promotion to the higher category the moment a vacancy occurs in the latter, even if it be that promotion is governed solely by the predetermined fact of seniority. Seniority, no doubt, furnishes a title to promotion, not, it is true in this case, a merely contingent title as would be the case, if the rule for promotion were merit, seniority counting only in cases where the merit of the competing claimants is roughly equal. Nevertheless, it is no more than a title. There would still have to be the conferment of the promotion by the appointing authority, and the promotion would no more follow automatically from a declaration of seniority than would possession from the hands of a trespasser follow automatically from a decree merely declaring title.

12. It has been suggested that promotion must follow from a declaration of seniority, much in the same way as a final decree follows upon a preliminary decree. The analogy seems to us unsound. A preliminary decree and a final decree are different stages of the same suit, the rights of the parties thereto being decided by stages. The suit is still pending when the final decree is passed and there is no question of the final decree granting anything more than, or different from, what was sought in the plaint.

13. The earlier appointment of respondents 3 and 4 to the superintendents' category was unconditional and it entitles them to seniority over the petitioner in that category. So long as that impediment stands and is not set aside—as we have said, up to this moment, the petitioner has not sought to have it set aside—the petitioner cannot claim seniority over respondents 3 and 4.

14. We might mention that seniority in the category of superintendents is in no wise affected by the proviso to sub-rule (b) of Rule 27. The orders of the Travancore-Coehin Government in R. Dis. No. 8207/50.CS dated the 7th May, 1951 (as subsequently clarified) referred to therein amount to this; If a member of a service is overlooked for promotion to a higher category on the ground that he has not passed an obligatory test, with the result that a junior of his in the lower category supersedes him and secures the promotion, the overlooked senior would become senior in the higher category, to the superseding junior on the former securing the promotion after qualifying himself, provided the latter has not been confirmed meanwhile in the higher category. (This, it is said—and not without force—is really to encourage incompetence and idleness at the expense of ability and diligence; but, so long as the rule itself has not been attacked, that is not a matter for consideration by us). But, this has no bearing on the question before us, namely, the relative seniority of the petitioner and respondents 3 and 4 in the superintendents' category, since the earlier appointment of respondents 3 and 4 to that category was not because of their having passed some obligatory test which the petitioner had not. In fact, it would appear that there is no test to be passed for promotion from the upper division to the superintendents' category.

15. It is argued on behalf of the petitioner that the prayer in the petition, namely, that an appropriate direction be issued to treat the petitioner as senior to respondents 3 and 4 in the superintendents' category, read along with sub-rule (a) of Rule 27 by which seniority is determined by the date of first appointment, necessarily implies a prayer to set aside the earlier appointment of respondents 3 and 4 to the superintendents' category. This is a very far-fetched argument and we are not prepared to countenance it. But, assuming that the petition did contain a prayer—which it definitely does not—for setting aside the earlier promotion of respondents 3 and 4 to the superintendents' category and conferring an earlier promotion on the petitioner, we would be disinclined to grant the petitioner that relief. For, as we have seen, the 3rd respondent was promoted to the category of superintendents as long ago as the 13th March, 1962 and the 4th respondent as long ago as the 25th April, 1962. The would be the first time the petitioner questioned these promotions—his earlier petition, O.P No. 778 of 1963, as we have seen, was confined to seniority in the upper division and had nothing to do with either appointment to, or seniority in, the superintendents' category. His present writ petition, brought, on the 22nd May, 1966, must certainly be regarded as very much out of time. That he was fighting the battle of his seniority in the lower categories and that it was necessary for him to establish his seniority in the upper division in order to establish his title to earlier promotion to the superintendent's category is no more an excuse for the delay than that a person was awaiting the outcome of a suit for a declaration of his title would I be an excuse for bringing a suit for 1 possession against his adversary more than twelve years after the latter has dispossessed him. If, on the earlier promotion of respondents 3 and 4 to the superintendent's category, the petitioner had come to Court assailing that, the Court would, no doubt, have had to be satisfied as to the petitioner's title to earlier promotion, and, therefore, of his seniority in the upper division. It would have had to find title in his favour before giving him the relief he sought. But, surely, the Court would not deny him relief merely because he had not already established his seniority in the upper division and would not have rejected his petition as premature. It would not have asked him to establish first his seniority in the upper division by appropriate proceedings before coming to Court to assail the earlier promotion of respondents 3 and 4. If a man brings a suit for possession based on title, the Court does not ask him to first establish his title by separate proceedings although it has to find title in his favour before decreeing his suit.

16. There is another impediment in the petitioner's way. When he came to Court on the 31st March, 1963 with O.P No. 778 of 1963, he had already suffered what he now alleges to be the trespass by respondents 3 and 4 over his right to the superintendents' category—he was still only in the upper division. As we have said more than once, he did not make any complaint of this and was content with asking for the determination of his seniority in the upper division. Not having then questioned the appointment of respondents 3 and 4 to the superintendents' category, we do not think he can be allowed to question that now in this new petition which he has brought.

17. The principles underlying statutory provisions like the Limitation Act and Section 11 and Order II, Rule 2 of the CPC, are, we should think, applicable to petitions under Article 226 of the Constitution. These provisions are not to be regarded as embodying technical rules of procedure. They are based upon principles of public policy aiming at justice, the securing of which is the very object of Article 226. The principles are principles of repose and peace. “Long dormant claims have often more of cruelty than of justice in them,” said Best, C.J and in A Court v. Cross, (1825) 130 ER 540. And so, we might add, has the fighting of the same legal battle over again with the same adversary, or, once a wrong has been suffered, the fighting of the battle for redress piecemeal.

18. As we have observed, the confirmation of the petitioner in the lower division and his relative seniority over respondents 3 and 4 in that division and in the upper division are matters of no consequence; but we might say that we agree with the view taken by the learned singly Judge on those questions. In the light of the G.O, Ext. P-1 dated 23-1-1950 (which, it would appear, though made on the complaint of the subordinates of the land revenue department, is not confined to that department), it is difficult to see how it can be contended as the respondents including the State Government have contended, that the passing of a prescribed departmental test is a pre-requisite to confirmation. That G.O lays down in categorical terms that the “passing of the tests need not be made condition precedent for confirmation in the lowest grade, but should be a compulsory qualification for promotion.” That lower division clerks constituted the lowest grade within the meaning of this G.O is not disputed; and we agree with the learned single Judge that they cannot have ceased to constitute the lowest grade merely because, by successive pay revisions, their salary was raised.

19. We might at the same time observe that this question of confirmation in the lower division is altogether irrelevant to the matter on hand based as it is on what seems to be the misconception shared by the petitioner and the respondents alike that seniority in the lower division (at least as between confirmed hands; confirmed hands, it is said, being always senior to officiating hands since confirmed and officiating hands are separately shown in the civil lists, the former before the latter:) is determined by the date of confirmation therein. Under rule 27 in Part II of the Kerala State and Subordinate Services Rules, 1958 the relative seniority of the petitioner and respondents 3 and 4 who, it is the common case, were “advised” by the Public Service Commission by the same list is determined by the order in which their names appear in the list. Admittedly, the petitioner's name was above that of respondents 3 and 4, and, therefore, it should follow that he was senior to them in the lower division. No different rule in force in the Travancore-Cochin service has been brought to our notice—indeed, there would appear to have been no formal rules at all—and, so far as we are aware, the principle of seniority followed in the Travancore-Cochin service was more or less the same as that in Rule 27 in Part II of the Kerala State and Subordinate Services Rules, 1958.

20. The reliance placed by the 3rd respondent on an unofficial note dated the 29th June, 1962 sent from one department of the Government Secretariate to another department, a copy of which he has produced for our perusal, and on what he regards as the implication of G.O.R Dis. No. 8207/50.CS dated the 7th May, 1951 as subsequently clarified, is altogether misconceived. An unofficial note prepared by a department of the Government Secretariat can hardly determine service rights; nor can the mere implication of some Government order not directly concerned with the right in question—not that we see any such implication as the 3rd respondent sees in the G.O.R Dis. No. 8207/50.CS dated the 7th May, 1951 as subsequently clarified, namely, that seniority in a grade is determined by the date of confirmation therein.

21. By reason of the proviso to sub-rule (b) of Rule 27 in Part II of the Kerala State and Subordinate Services Rules, 1958, and in the light of Government order, R. Dis. No. 8207/50.CS dated the 7th May, 1951 as subsequently clarified, the petitioner who was senior to respondents 3 and 4 in the lower division must be regarded as senior to them in the upper division as well since respondents 3 and 4 had not been confirmed therein before the petitioner's promotion thereto—in fact, it would appear, that none of them has yet been confirmed therein.

22. It might be said that the earlier confirmation of respondents 3 and 4 in the lower division was ordered in 1958 and 1959 respectively and that their seniority over the petitioner was declared in October 1961 by the publication of the gradation list in the gazette. Yet, it was only about a year after that the petitioner made his first complaint by means of his petition, Ext. C-1, to the Government, and it was only more than a year thereafter that the petitioner came to this Court with his complaint in O.P No. 778 of 1963. It would, no doubt, appear that the petitioner was guilty of laches, but then the question of his confirmation in the lower division and of his seniority in that division and the upper division was set at large by the decision in O.P No. 778 of 1963. And since these questions were thereafter decided only by Ext. P-5 dated the 3st March, 1966, it cannot be said that with regard to these matters his present petition is belated.

23. In the result we allow tills appeal to this extent, namely, that we dismiss the petitioner's prayer for a declaration of his seniority over respondents 3 and 4 in the superintendents' category. For the rest, we dismiss the appeal. We make no order as to costs.

24. We might add that we have not been called upon to consider and have not considered whether an appointing authority on discovering that it has made a mistake, has the power of reviewing appointments already made by it for the purpose of rectifying the mistake; or, granting the power, the power can be exercised irrespective of the length of time that has elapsed and irrespective of whether that would adversely affect rights long and peaceably enjoyed.

25. Mathew, J.:— The facts of the case have been stated in the judgment of my learned brethren.

26. We are concerned in this appeal with the question whether the writ petitioner, hereinafter called the petitioner, can be declared as senior to respondents 3 and 4 in the category of Junior Superintendents.

27. The learned single Judge found that the petitioner was senior to respondents 3 and 4 in the lower division by reason of the proviso to sub-rule (b) of Rule 27 of the Kerala State and Subordinate Service Rules, 1958. I think that the finding is correct. And in the light of the Government order R. Dis. No. 82071/50.CS dated 7th May, 1951 as subsequently clarified, it cannot be disputed that the petitioner who was senior in the lower division to respondents 3 and 4 must be regarded as senior to them in the upper division also, as respondents 3 and 4 were not confirmed in the upper division before the promotion of the petitioner thereto.

28. But it is said that since the promotion of respondents 3 and 4 on 13th March, 1962 and 25th April, 1962 respectively to the Junior Superintendent's category was not questioned by the petitioner in his representation Ext. C-1 dated 4-8-1962 before the Government or in O.P 778/1963 challenging Ext. P-3, the order on Ext. C-1, or in the present writ petition, he forfeited his seniority in the superintendent's category, as the effect of Rule 27(a) of the State and Subordinate Service Rules is that seniority in the superintendent's category should be determined with reference to the date of the order of appointment to that category and not with reference to the seniority of the petitioner in the upper division. That respondents 3 and 4 were promoted to the Junior Superintendent's category earlier than the petitioner has not been disputed.

29. When respondents 3 and 4 were promoted to the Junior Superintendent's category, the assumption of Government was that they were seniors to the petitioner in the lower and upper division categories; and that gave them an in defeasible right to promotion to the Junior Superintendent's category earlier than the petitioner. The relevant rule in the Kerala State and Subordinate Service Rules when respondents 3 and 4 were promoted to the Superintendent's category read as follows:

“28(b) — All other promotions shall subject to the provisions of these rules, be made in accordance with seniority, unless the promotion of a member has been withheld as a penalty.”

30. This rule was amended by G.O No. 565.Public (Rules) dated 23-10-1962; and the present rule reads:

“All other promotions or appointment by transfers shall, subject to the provisions of these rules and the special rules be made in accordance with seniority subject to the person's fitness for appointment.”

31. So if the Government was aware at the time when respondents 3 and 4 were promoted to the Superitendent's category that the petitioner was senior to them in the upper division—there being no case that the promotion of the petitioner has been withheld as a penalty — the Government could not and would not have promoted these respondents to that category overlooking the seniority of the petitioner. In other words, the promotion of respondents 3 and 4 to the superintendent's category overlooking the seniority of the petitioner over them in the upper division was against the rule then in force, and was, therefore, bad.

32. Now, on what basis could the petitioner have challenged the earlier promotion of respondents 3 and 4 to the superintendent's category? Only on the ground that he was senior to them in the lower division as well as in the upper division. That was precisely what he did before the Government by Ext. C-1 representation, and in O.P 778/1963 before this Court with the Government and respondents 3 and 4 on the array of parties. When the very basis of the promotion of respondents 3 and 4 was challenged by the petitioner in those proceedings, it would be highly technical to say that because there was no specific prayer to set aside the promotion of respondents 3 and 4 either in Ext. C-1 or in O.P 778/1963, he has not challenged the earlier promotion of respondents 3 and 4 to the superintendent's category.

33. As I said, the only basis on which respondents 3 and 4 were promoted to the Superintendent's category earlier than the petitioner was the assumption of Government that they were seniors to the petitioner in the upper division. And the validity of their promotion depended solely upon the correctness of that assumption. In other words, seniority being the only title to promotion to the superintendent's category as the rule then stood, the promotion of respondents 3 and 4 to that category was and could solely be on the basis of that assumption. The petitioner had challenged the correctness of that assumption in his representation Ext. C-1 before the Government and in O.P 778/1963 before this Court. What else was required? A ad to deprive the petitioner of his seniority in the superintendent's category over respondents 3 and 4, for the reason that he did not specifically Question the validity of their promotions as such, although he was questioning the basis of the promotions, would be to make a very technical and narrow approach to the question. The learned Government Pleader stated at the bar that even if the learned single Judge had simply declared the seniority of the petitioner over respondents 3 and 4 in the lower and upper division categories, the Government would have given the petitioner seniority in the Superintendent's category, as the earlier promotion of respondents 3 and 4 to that category was on the assumption that they were seniors to the petitioner in the upper division.

34. Hitherto I was trying to point out that the petitioner was all along challenging the very basis of the promotion of respondents 3 and 4 to the Superintendent's category and that in substance and in effect that was a challenge to their promotion to the superintendent's category.

35. Now, what good would have come out, had the petitioner challenged specifically the promotion of respondents 3 and 4 to the Superintendent's category in Ext. C-1 or in O.P 778/1963 or in a separate writ petition? What relief could the Government or this Court have given to the petitioner without deciding the question of seniority of the petitioner in the lower and upper division categories? None. The validity or otherwise of the promotion of respondents 3 and 4 to the Superintendent's category would have followed as ‘the night the day’ the decision of the question of seniority of the petitioner in the lower and upper division categories. To put it in other words, the decision of the question of the validity or otherwise of the earlier promotion of respondents 3 and 4 to the superintendent's category would have been mechanical or automatic on the decision of the question of the seniority of the petitioner in the lower and upper division categories. I could have understood the argument about a distinct and separate challenge to the earlier promotion of respondents 3 and 4 to the superintendent's category if these promotions were or could be either wholly or in part at least on the basis of such imponderable factors as merit and ability, or even seniority-cum-or subject to fitness. Then probably it could have been said that a distinct challenge to the promotions would be necessary to displace them.

36. Then it is said that even in the present writ petition there was no distinct challenge to the earlier appointments of respondents 3 and 4 to the superintendent's category. Prayer (c) in the writ petition is:

“to issue a writ of mandamus or other appropriate writ, direction or order to treat the petitioner as senior to respondents 3 and 4 in the lower division clerks cadre and the upper division clerks cadre and now in the Claims Inspector's Cadre in the State Insurance Department and assign to the petitioner rank (on) such basis.”

37. In substance and in effect the prayer for an order to treat the petitioner as senior to respondents 3 and 4 in the ??? Inspector's cadre (the Superintendent's category) can only be on the basis that the earlier promotion of respondents 3 and 4 was against the rule then in force because the petitioner could not be senior to them on any other basis. The prayer, I think, is a sufficient challenge in a Court administering justice in the year of our Lord 1970 of the earlier promotion of respondents 3 and 4.

38. A prayer to declare the petitioner as senior to respondents 3 and 4 in the Claims Inspector's cadre, on the basis that he was senior in the lower and upper division categories to them is nothing but a challenge to their appointments to that category on the basis of the mistaken assumption by Government that they were his seniors in the lower and upper division categories. Quite apart from this, I think, it is open to a Court exercising jurisdiction under Article 226 to mould the relief according to the justice of the case. Even when there is no prayer for a relief, if having regard to the facts and circumstances, the justice of the case requires a relief to be granted, I think, a Court exercising jurisdiction under Article 226 can grant it. I cannot, in the facts and circumstances of the case, make an exercise in futility by limiting the relief to be granted to a declaration that the petitioner was senior to respondents 3 and 4 in the lower and upper division categories, a relief now practically useless to him.

39. To my mind, there was no laches on the part of the petitioner. He has been questioning the very basis of the promotions of respondents 3 and 4 to the superintendent's category on the 13th March, 1962 and 25th April, 1962 respectively. He began questioning the basis of the promotions on 4th August, 1962 when he filed Ext. C-1 before the Government and was pursuing it thereafter till the passing of Ext. P-5 by Government, the order impugned in the present writ petition before the learned single Judge. Respondents 3 and 4 were parties to all these proceedings. They have to tarry until the proceedings here are over for repose. In the view I have taken, I do not think, Section 11 and Order 11, Rule 2 of the CPC have anything to do with the case.

40. In Govindaraj Setty v. State of Mysore, 1987-2 Lab LJ 143 (Mys), the petitioner there was working as a stenographer in the Labour Department, which was part of the Department of Industries and Commerce. Quite a few persons who were juniors to him and who held the post of first division clerk, were promoted as Assistant Commissioners of Labour. The petitioner then made representations against his supersession but was informed by the Commissioner of Labour in the year 1953 that his request for promotion had been ‘turned down’ by the Government. The petitioner filed a writ petition challenging the order of Government. On the question of relief to be granted to the petitioner, the Court said:

“The question to be next considered is as to the relief which we should make available to the petitioner. We have no doubt that the petitioner should be promoted as an Assistant Commissioner of Labour and we make a direction accordingly. But, taking all the circumstances of the case into consideration, we are of opinion that he should be promoted as such Assistant Commissioner of Labour with effect from 2 Feburary 1959, when there were no Cadre and Recruitment Rules regulating promotions. We are informed by Sri Hegde for the petitioner that the petitioner's juniors have become Class I Assistant Commissioners of Labour in October 1960. If the petitioner had been promoted when he should have been promoted, it is obvious that he would also have become a Class I Assistant Commissioner of Labour when his juniors were promoted to Class I. Our direction, therefore, is that with effect from the date on which the petitioner's juniors, namely………were promoted as Class I Assistant Commissioners of Labour, the petitioner will also be promoted as such Class I Assistant Commissioner of Labour. The petitioner be entitled to all the other benefits flowing from fee promotions which we have directed by this order.”

41. To the extent it goes, the case supports the contention of the petitioner. I hold that Govindan Nair, J., was right in directing the Government to pass the proper order giving the petitioner rank above respondents 3 and 4 in the Junior Superintendent's category; and would dismiss the appeal with costs.

BY COURT

42. Judgment in accordance with the decision of the majority.

43. Order accordingly.