Avadh Behari Rohatgi, J.
(1) These are two appeals under Clause 10 of the Letters Patent from the order of a learned single judge dated 11th February. 1981. At the conclusion of the hearing on March 23, 1982 we announced our orders. We allowed the appeals. We dismissed the writ petition. We left the parties to bear their own costs Now we give our reasons.
(2) These are the facts. On May 22, 1979 two assistant engineers of the Municipal Corporation of Delhi (the Corporation), Ram Lal Malik and 1. C. Gupta, brought a writ oetition under Article 226 of the Constitution against the Corporation and its Commissioner. These two petitioners challenged the final seniority list notified on January 30, 1975 and asked that the said seniority list be quashed by a writ of certiorari.
(3) This writ petition was contested by the Corporation. Among other pleas the Corporation raised the objection that the writ petition was not competent in the absence of all those who were likely to be affected by the decision of the writ petition. The petitioners took the stand that it was not necessary to implead other persons. The writ petition was then heard by the learned judge. He quashed the seniority list of January 30. 1975 and also December 21, 1979 which had been issued during the pendency of the petition.
(4) From the order of the learned judge the Corporation and the Commissioner have brought one appeal (I.. P. A. 72 of 1981). The other appeal (L. P. A. 49 of 1981) has been brought by 10 direct recruits who had not been originally made parties in the writ pstition by Malik and Gupat Though these 10 direct recruits, who are appellants in L.P.A. 49 of 1981, had not been imp leaded as parties in the writ petition, they brought the appeal on the ground that they were adversely affected by the impugned judgment and ought to have been heard before any decision was made by the judge. It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment. (Jatan Kanwar v. Golcha Properties, : 3SCR247 ). The same principle applies to writ petitions. The court by order dated 12-5-81 allowed these 10 direct recruits to prefer the appeal from the order of the learned judge. This judgment will govern both these appeals.
(5) Malik and Gupta, who are now respondents in both the appeals, challenged in their writ petition the seniority list which had been published as far back as 1975 by the Corporation. This seniority list was based on the principle of quota and rota. The seniority of direct recruits and promotees inter se was determined on the basis of their respective quotas. This was done on the principle laid down in the office memorandum dated December 22, 1959, issued by the Ministry of Home Affairs, Government of India, which was also adopted as the basis of determination of seniority by the Corporation for its employees. Previous to this the erstwhile Delhi Municipal Committee had, by means of a resolution dated 11th June, 1954 (confirmed at the meeting of July 14, 1954) adopted the principle of length of continuous service as the basis of seniority. When the Delhi Municipal Corporation Act, 1957 (the Act) was enacted and the Corporation was established under it. the seniority rules adopted by the Delhi Municipal Committee in 1954 were abrogated and another resolution adoptive the principle of seniority laid down in the office memorandum of 1959 was adopted on 27-7-1970. In accordance with this resolution a final seniority list dated 30th January, !975 was issued (Annexure O). A second correct seniority list was issued on 2-9-1978 (Annexure P). This second list was no more than a corrigenda. It merely corrected certain mistakes which had crept in the first list and filled up the blanks in that list which had remained unfilled because cases of some employees were pending before the vigilance committee and these persons had not been cleared of the charges brought against them. During the pendency of' the writ petition a third seniority list dated December 21, 1979 was issued.
(6) Before the learned judge there were two competing principles. One was the principle of length of service as embodied in the resolution of 1954 of the Delhi Municipal Committee, and the other was the principle of confirmation which was based on the office memorandum of 1959 of the Government of India. Malik and Gupta contended that they ought to be governed by the principle of length of continuous service and the seniority list ought to have been framed on that basis. The learned judge accepted this contention and held that by virtue of Section 511 and 516(2) of the Act the resolution dated 11-6-1954 still holds the field and the seniority list which had not been prepared in accordance with this resolution was illegal. He quashed the list of January 30, 1975, as also of December 21, 1979. Because during the pendency of the case this third seniority list dated 21-12-1979 had been issued.
(7) The final seniority list is dated 30th January, 1975. It is based on the principle of quota. It determines the inter se ranking of the promotees and the direct recruits. It is based on the principle of confirmation embodied in the Government memorandum of 1959. The two subsequent lists of 2-9-1978 and 21-12-1979 modified the list of 1975 in some respects, though the principle on which they are all based is the same as adumbrated in the list of 1975. Whether the learned judge was right in holding that the principle of length of service ought to govern the assistant engineers or not, we are not deciding in this case. Because we are of the opinion that the writ petition brought by Malik and Gupta was incompetent and ought to have been dismissed by the learned judge in liming. On this preliminary ground these two appeals, in our opinion, ought to succeed.
(8) In 1979 when the petition was filed there were in the cadre of assistant engineers (civil) about 39 promotees and 31 direct recruits. Out of these only two promotees, Malik and Gupta, brought the writ petition challenging the correctness of the final seniority list dated 30th January. 1975. The learned judge has found as a fact that the final seniority list is the one that was issued by order dated January 30, 1975. This is the basic document. It is the sheet-anchor of parties' rights. The final seniority list issued on December 21, 1979 was a modification of that list because certain objections had been raised by some employees against the list of 1975.
(9) In our opinion the writ petition was not properly constituted. It was necessary for Gupta and Malik to implead all the promotees and direct recruits who figured in the seniority list or were likely to be affected by the decision of the court one way or the other. Before us Mr. Bhatia has appeared for 10 direct recruits who are appellants in L. P. A. 49 of 1981. Mrs. Urmila Kappor was argued on behalf of three promotees. Mr. R. B. Dattar represented four other promotees. These 17 persons who appeared before us had not been made parties in the original writ petition. Obviously they are all directly affected by the order of the learned judge whereby he has quashed the seniority lists dated January 30, 1975 and December 21. 1979 in which all these persons rank higher to Malik and Gupta. The obvious consequence of the decision of the judge is that these people will go down in the list and Malik and Gupta will come above them on the principle of length of service. 'Many that are first shall be last; and the last shall be first' (St. Mathew Xix, 30). This is turning the settled list upside down.
(10) Now at this stage the main question is whether the promotees and the direct recruits were necessary parties or proper parties to the writ petition. Mr. Bhatia says that they were necessary parties. Mr. S. S. Ray on behalf of Malik and Gupta argued that they were proper parties and not necessary parties. He submitted that. if it is held that they are necessary parties he may be allowed to implead them now in the appeal. In support of his submission he referred us to Order I rule 10, Section 107(2), Order 41 rule 20 of the Code of Civil Procedure and contended that the court had ample power to implead a party at any stage of the litigation. We were referred to Kanakarathanammal v. Loganatha. : 6SCR1 , Imam Din and others v. Mt. Fazlan. Air 1949 Lah 248, Ajit Kumar v. Surendra Nath : AIR1954Cal365 , and Mohini Mohan v. Sris Chandra. : AIR1978Cal434 . All these cases deal with the power of the court to implead parties in suits and lay down principles which ought to govern the discretion of the Court in impleading parties under Order I rule 10 of the Code of Civil Procedure. In our opinion these cases are of no relevance. This is not to say that the distinction between necessary and proper parties is not observed in writ jurisdiction. What is meant is that in the prerogative writs the courts, in the course of long history, have forged an instrument, at once flexible and elastic, of doing justice. This jurisdiction is in many ways different from the dilatory procedure of suits governed by the rigid rules of a procedural code.
(11) We are here dealing with the question of addition of parties at the stage of appeal in a writ petition. Section 141, Civil Procedure Code says that the Code of Civil Procedure does not apply in terms to the writ proceedings under Article 226 of the Constitution. Apart from this we are of opinion that we ought to refuse the request to add parties at this late stage in the appeal on the ground of fatal delay.
(12) It appears to us that all the direct recruits and promotees in this cadre were necessary parties to the writ petition. Failure to implead them is fatal. Their absence makes the writ petition incompetent. To implead them at tins stage will give rise to manifest injustice, because of delay. In essence it is the list of 1975 which has been overthrown. When the list was prepared in 1975 a cause of action arose to Malik and Gupta at that time. The two subsequent lists merely modify the original list in some respects but the principle of all the three lists is the same, namely, the office memorandum of 1959 of the Government of India.
(13) Between 1975 and 1982 when we are asked to implead parties very many things have happened. People must have been promoted to higher posts. They must have taken their places in the ladder of seniority. Hopes and aspirations must have been raised in the minds of many on the basis of 1975 list. It will be sheer injustice to unsettle the settled things. Expectations must have been raised which will be dashed to the ground if we overturn the final seniority list of 1975 after seven years. It would be strange if provisions for addition of parties were perverted to supply such omission at this late stage. The Supreme Court has said that a person aggrieved by an order of promotion of a junior over his head should approach the court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the courts to exercise their powers under Article 226. Nor is it that there can never be a case where courts cannot interfere in a matter after the passage of a certain length of time.
'BUTit would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward State claims and try to unsettle settled matters. The petitioner's petition should, thereforee, have been dismissed in liming.'
P.S. Sadasiraswamy v. State of Tamil Nadu, 1976 (1) S.L.R. 53.
(14) There is no question of limitation in such cases. The principle is based on the maxim 'delay defeats equity' or the principle that the courts help those who are vigilant and do not slumber over their rights. (Tilokchand Matichand v. H. B. Munshi, : 2SCR824 ) . In the words of Lord Camden L. C a court of equity 'has always refused its aid to State demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive, and does nothing.' (Smith v. Clay (1767) 3 Bro. C.C. 639.
(15) We were referred to Padam Singh Jhina v. Union of India 1974 (1) S.L.R. 594 and The General Manager, South Central Railway v. A.V.R. Siddhanti, 1974 (1) S. L. R. 597. These two Supreme Court cases lay down two distinct principles. In Jhina's case the court found it impossible to investigate the question whether there has been an infringement of the rules governing fixation of seniority, because a majority of those who were placed above the appellant Jhina in the seniority' list had not been imp leaded in the petition before the judicial commissioner and were not before the Supreme Court. The Court said :
'IT is impossible to pass an order, assuming that the appellant is able to convince us that a breach of the rules was committed, altering the list of seniority, unless those who are likely to be affected thereby are before the court and have an opportunity of replying to the case set up by the appellant.' (p. 596).
(16) In Siddhanti's case the court was concerned with the validity of certain administrative rules of general application, regulating absorption in permanent department, fixation of seniority, pay, etc. of the employees of the erstwhile Grain Shop Departments. The respondent impeached the validity of those policy decisions on the ground of their being vocative of Article 14 and 16 of the Constitution. The Supreme Court held that the employees who are likely to be affected were not necessary parties. They were at the most proper parties. The Court said :
'THEproceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Government servants is assailed. In such proceedings the necessary parties to be imp leaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case. the relief is claimed only against the Railway which has been imp leaded through its representatives. No list or order fixing seniority of the petilioners vis-a-vis particuler individuals, pursuant to the impugned decision, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decisions of October 16, 1952, were, at the most, proper parties and not necessary parties. and their non-joinder could not be fatal to the writ petition.' (page 602).
(17) Siddhanti is clearly distinguishable on the ground that in that case no list or order fixing seniority of particular individuals was being challenged. In the present case it is the seniority list or the inter se ranking of the promotees and the direct recruits which is directly in question, In our opinion the principle of Jhina's case ought to apply to the present case. Applying that principle we must hold that the writ petition was not maintainable.
(18) We must thereforee hold that a party whose interest is directly affected is a necessary party. In his absence the seniority list cannot bs quashed. How can the High Court issue a writ of certiorari and set aside the seniority list without all the parties affected by it being before it Without the presence of such parties the High Court cannot issue an order substantially affecting their rights. Any order that may be issued behind the back of a party can be ignored by such a party, with the result that the court's order would be set at naught. Now courts do not issue pointless orders. 'Such a party, thereforee, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is thereforee a necessary party' (Udit N drain Singh v. Additional Member, Board of Revenue. 1963 Suppl. S.C.R. 11.
(19) We are of the opinion that the omission to make direct recruits and other promotees, who will be directly affected by the upsetting of the seniority list of 1975 and 1979, as parties is a fatal flaw. A decision given behind the back of the promotees and direct recruits cannot bind them because they were not before the court. In the circumstances the petition filed by Malik and Gupta was incompetent and ought to have been dismissed.
(20) Mr. Ray on behalf of Malik and Gupta suggested that this court may at this stage, even though it be Hate. direct them to be made parties and remand the matter to the single judge for disposal. This request is belated and thereforee cannot be granted. The reason is that to allow these persons to be imp leaded at this stage is virtually to allow Malik and Gupta to bring a new petition for all iltents and purposes in the year 1982 for quashing a list which was for till practical purposes issued way back in 1975. This will be a new trial for all purposes. We cannot allow the list of 1975 to be challenged in 1982. This is the essence of the matter. In this view it is not necessary for us to express our opinion on the validity of the view taken by the learned judge on the merits of the case.
(21) It is worthy of note that Malik and Gupta never filed objections to the provisional seniority list dated 9-7-1974, though objections were invited by the Corporation. Nor did they object to the final seniority list dated 30th January, 1975. for four years. For the first time they questioned the validity of this list in the writ petition in 1979. That writ petition, as we have said, was incompetent. The absence of necessary parties is a fatal flaw. In 1982 it is too late to allow parties to be added. Delay operates as waiver, estoppel or acquiescenc-J. 'It is a rule of fairness by which the courts protect the reliances and expectations of innocent persons from defeat by those who have induced those reliances and expectations.' To ask the Corporation to go back to 1954, as the learned judge has done, is to upset all that has been done over these long years from 1970 to 1982. It is a fundamental principle governing seniority that all those who would be directly affected by the grant of relief in the writ petition must be joined as parties. This is basic to service jurisprudence. On the ground of non-joinder of necessary parties the writ petition ought to have been dismissed. D. Wilson v. V.M. Kunjuvaskey (1978) 1 Slr 325. Unfortunately this aspect does not appear to have been argued before the learned judge. For these reasons we have allowed the appeals.