IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 138/2010 Decided on: 27.8.2010. Pitamber and others. ...Appellants. Versus Himachal Pradesh University and another. ... Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellants : Mr. Bhuvnesh Sharma, Advocate. For the Respondents: Mr. B.C. Negi, Advocate for respondent No.1. Justice Rajiv Sharma ( oral ) This Letters Patent Appeal is directed against the judgment dated 29.3.2010 passed by the learned Single Judge in CWP (T) No. 5153/2008. 2. Material facts necessary for the adjudication of this Letters Patent Appeal are that the appellants-petitioners (hereinafter referred to as ‘the petitioners’ for convenience sake) filed petition before the erstwhile Himachal Pradesh Administrative Tribunal with the following reliefs: 1Whether the reporters of the local papers may be allowed to see the Judgment? (i) “That the respondents may very kindly be directed to count the seniority of the applicants in the cadre of clerks from the date of their initial appointment in the University. (ii) That the respondents may further be directed to grant promotion to the applicants with effect from the date junior persons in clerical cadre have been promoted to the next higher post with all consequential benefits. Or In case the post of Hostel Attendant is treated as Class-IV, the applicants may very kindly be ordered to be promoted as Clerks w.e.f. the date persons junior to them in Class-IV category were promoted as such and they may be assigned seniority accordingly with all consequential benefit of promotion etc.” 3. Respondent-University filed reply to the same. Case of the petitioners, in a nutshell, before the Tribunal was that though they had been appointed as Hostel Attendants, however, they had been discharging the duties of Clerks and their seniority should be counted in the cadre of Clerks from the dates of their initial appointment in the University. Case of the respondent-University precisely was that the Clerks fall in the ambit of Class ‘C’ and in these circumstances, petitioners could not claim any parity with them. The learned Single Judge dismissed the petition. Hence, the present Letters Patent Appeal. 4. We have heard the learned counsel for the parties at length. 5. Petitioner Lalit Kishore and Divesh Kumar were appointed to the post of Clerk in the pay scale of Rs. 400-600 vide office order dated 5.7.1988. They were required to qualify the typing test within a period of one year failing which they were to be reverted to their substantive post of Hostel Attendant. They were to be taken into the cadre of Clerks from the date of their regularization as Clerk. Respondent-University took a decision vide item No. 49 (10) in its meeting held on 7.10.1988 to convert nine posts of Hostel Attendants, who were fulfilling the minimum educational qualifications of matriculation, into those of Clerks. The decision of the Executive Council is reproduced below: “The proposal to convert the 9 posts of Hostel Attendants into those of clerks was approved in principle with the following conditions: 1. that the concerned hostel attendants will have to qualify the typing test for the post of Clerk. 2. as soon as the hostel attendant qualify the typing test, his post will stand converted from the date of qualifying the typing test and the seniority of incumbent as Clerk will be from that date. 3. the Finance Committee & Promotion Rules of the H.P. University in respect of category ‘D’ employees may be modified so as to bring them in consonance with these prevalent in the State Government for the purpose of promotion to the post of clerk from category ‘D’.” 6. In sequel to decision dated 7.10.1988, a notice was issued on 19.11.1988. The petitioners were directed to appear in the typing test which was to be held on 5.12.1988, 7.3.1989, 5.6.1989 and 5.9.1989. Petitioner No.1 - Pitamber, qualified the typing test on 11.4.1990, petitioner No.2-Divesh Kumar qualified the test on 5.9.1989, petitioner No.3-Lalit Kumar qualified the test on 11.1.1990 and Gita Bisht qualified the typing test on 7.3.1989. The learned Single Judge has come to a right conclusion that the petitioners could not be granted seniority from their initial appointments in the respondent-University. They have rightly been denied the benefit of F.R. 22-C. The petitioners could also not substantiate before the learned Single Judge that any person junior to them, appointed as Clerk, was promoted before them. 7. It is true that as per decision dated 7.10.1988, the seniority of the petitioners and similarly situate persons was to be counted from the date they qualified the typing test. The same condition was reiterated in notice dated 19.11.1988. These persons have qualified the typing test, as noticed hereinabove. Respondent-University has not placed on record, how seniority of the petitioners was to be determined vis-à-vis persons already appointed as Clerks after the conversion of nine posts of Hostel Attendants to Clerks. Petitioners were appointed as Clerks and they started discharging the duties of Clerks. In these circumstances, their seniority was to be determined on the basis of principle of length of service and not from the date of qualifying the typing test. 8. Accordingly, the judgment of the learned Single Judge is sustained subject to modification mentioned hereinabove whereby the petitioners are held entitled to the seniority from their dates of appointment as Clerks in the respondent-University with all the consequential benefits. Consequently, the Letters Patent Appeal is disposed of. No costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma) Judge. 27.8. 2010. *awasthi*