IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition No.784 of 2003. Date of decision: 19.10.2010. Ramesh Chand … …Petitioner Versus National Institute of Technology & Anr. …Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.K.D. Shreedhar, Advocate. For Respondent No.1: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. The petitioner challenges the grant of seniority to respondent No.2 above the petitioner. The petitioner prays that the order dated 30th July, 2003, rejecting the representation of the petitioner, Annexure P-15 and seniority lists, circulated on 22nd September, 1995, Annexure P-11 and 28th February, 2000, Annexure P-12 be quashed and set aside with a direction that final seniority list dated 31st May, 1991 be withdrawn and petitioner be granted all other consequential benefits. 2. Petitioner submits that he was appointed as a Helper on temporary basis on 11th June, 1986 vide 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Annexure P-1. He was offered a regular post on temporary basis vide Annexure P-2 on 25th August, 1986. The tentative seniority list of Class-IV employees as on 30.6.1987, Annexure P-3, was circulated on 16th July, 1987 in which, respondent No.2 was shown at Sr.No.1 and the petitioner at Sr.No.5. The case of the petitioner is that since he is senior in age, he should have been shown above respondent No.2. Representation was made by the petitioner, Annexure P-9, on 21st September, 1994 where he made a grievance to this effect. A provisional seniority list, Annexure P-10, was circulated and in this, the petitioner was shown at Sr.No.1 and respondent No.2 at Sr.No.2. Thereafter, vide Annexure P-11 final seniority list was circulated. The representation made by Vinod Kumar, respondent No.2, was accepted and he was shown as senior to the petitioner. 3. It is undisputed before me that the petitioner and respondent No.2 were appointed on regular basis as peons on 25th August, 1986. It is also undisputed that respondent No.2 joined duties on regular basis as Helper/Peon on 26th August, 1986 and petitioner on 2nd September, 1986. Learned counsel submits that earlier date of joining by respondent No.2 would be of no avail as clause-12 of Annexure P-2 clearly states that in case the offer is acceptable to the petitioner, he should join by 2nd September, 1986. In these circumstances, his joining the duties on a 3 later point of time than the respondent cannot affect his seniority and that age should be used as criteria to determine the seniority. Clause-12 of Annexure P-2 referred to by learned counsel reads:- “12. If Shri Ramesh Chand accepts the offer on the above terms and conditions, he will report to the Principal, R.E.C. Hamirpur immediately but not later than 2.9.86 failing which the offer is liable to be cancelled. His permanent head quarter will be at Hamirpur.” 4. This submission made on behalf of the petitioner that this offer determines his seniority w.e.f. 2.9.1986 cannot be accepted. The clause in the order is clear. Two conditions have been imposed, namely, that he should join immediately, but not later than 2nd Septembr, 1986. In other words, only an outer date has been given before which the petitioner should join duties, in case he accepts the terms and conditions of the appointment. 5. Learned counsel relies upon the decision of the Supreme Court in Suresh Chandra Jha vs. State of Bihar and Others, (2007)1 SCC 405, holding that when there is no rule in operation, the ranking in the merit list was to decide the respective seniority. The date of joining is a fortuitous circumstance and cannot govern seniority. The ratio of this judgment is not attracted to the present case as no merit has been 4 determined by the order by which the appointment has been offered. Moreover, there is no pleading on the record or any document to show that the petitioner was infact prevented by some unforeseen circumstances from joining his duties earlier and that respondent No.2 had stolen a march above him. 6. Learned counsel also relies upon the decision in Sudama Singh vs. Nath Saran Singh and Others, (1988)1 SCC 57, to urge that it is age which would determine the seniority. The petitioner being elder in age was entitled to that benefit. This submission cannot be accepted. In Sudama Singh’s case, the Supreme Court was considering the Regulations under the Intermediate Education Act, which provided that the seniority of the teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age. The regulations for consideration were:- “3(1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions: (a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post; (b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that 5 grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age.” In these circumstances, I do not find any merit in this petition which is accordingly dismissed. October 19, 2010. (Dev Darshan Sud) (aks) Judge.