IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T)No. 4585 of 2008 Date of decision: 20.10.2010 Sarat Chander Mahajan …... Petitioner Vs. State of H.P. and ors. …. Respondents Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioner : Mr. H.K. Paul, Advocate. For the respondents : Mr. R.K. Bawa, A.G. with Mr. J.K. Verma, Dy. A.G. for respondents No.1 to 3. Justice Kurian Joseph, C.J. (Oral) The writ petition is filed with the following prayers:- (a) The respondents No.1 to 3 may kindly be directed by appropriate writ, order or directions to assign seniority to the Applicant on the basis of date of confirmation in terms of instructions at Annexure A-11, to place the Applicant above the aforesaid Respondents No. 4 to 6 and immediately below Sh. Inder Kumar Sablok whose name figures at S.No. 194 of the Seniority list (Annexure A-7), S.No. 15 of Annexure A-8 and below S.No. 16 of Annexure A-10. 2 (b) The respondents may kindly be directed to assign the seniority to the Applicant on the basis of date of confirmation and Respondents 4 to 6 and others who were confirmed on a date later to the date of confirmation of the Applicant, be shown junior to the Applicant in the Seniority Lists at Annexure A-7, A- 8 and A-10. (c) The Respondents may kindly be directed to promote the Applicant to the post of Assistant Engineer, prior to the date of promotion of Respondents 4 to 6 or at least from the same date when his juniors were promoted as Assistant Engineer and grant all consequential benefits in the interest of justice. (d) The promotion of the Respondents No. 4 to 6 to the post of Assistant Engineer vide notification Annexure A-13, may kindly be quashed and set aside and the Applicant may be declared to be senior to the aforesaid Respondents 4 to 6. 2. In the reply furnished by respondents No. 1 and 2 in preliminary submissions, it is stated as follows:- “ That the applicant precisely is claiming seniority over Respondent No. 4,5 & 6. In this behalf, it is submitted that it is a settled principle that for seniority purpose length of service is to be seen and not the date of confirmation. The Respondents No. 4,5 & 6 are appointees of 3.5.60, 5.5.60 and 23.5.60 as Junior Engineer (C) and also figures at Sr. No. 201, 203 and 206 respectively of final seniority list Annexure A-7. Whereas the applicant in the said seniority list has been shown appointed of only 29.8.1972 as Junior Engineer at Sr. No. 898. No doubt the applicant got confirmation on 28.8.1974 as per Annexure A-1 to the O.A. but his date of actual appointment is only 29.8.1972. Thus the length of service as Junior Engineer of Respondent No. 4,5 & 6 is approximately 12 years more 3 in comparison to the applicant. Thus merely on the basis of earlier confirmation to respondent No. 4,5 & 6 the applicant is not entitled for the present reliefs. Hence, the present petition deserves dismissal on this short ground also.” 3. According to the learned counsel for the petitioner, he is entitled to seniority on the basis of date of confirmation. A reference is invited to Annexure A-11, Office Memorandum, dated 22.12.1959. Clause 3 reads as follows:- “Subject to provisions of para 4 below, permanent officers of each grade shall be ranked senior to persons who are officiating in that grade.” 4. It is not clear as to whether the private respondents were officiating in that grade or they were originally appointed to that post. From the available pleadings, it is fairly clear that the private respondents were not officiating in the cadre of Junior Engineers. They were directly recruited to that posts. According to the petitioner, though they were directly recruited to the posts of Junior Engineer in the year 1960, but their confirmation came only in the year 1972 after the petitioner’s confirmation. Be that as it may, it has to be seen from the general instructions that notwithstanding the provisions of para 3 above, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recommendation of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of subsequent selection. It is the contention of the 4 petitioner that proviso of clause 4 will govern the case of the petitioner, which reads as follows:- “Provided that where persons recruited initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit.” 5. We are afraid that the contention of the petitioner cannot be appreciated since there is no case for the petitioner that the private respondents were recruited initially on temporary basis. They were, admittedly, recruited on regular basis. If the private respondents were recruited on regular basis in the year 1960, it will be highly unreasonable to accord seniority to an incumbent like the petitioner, who has been appointed in that post in the year 1972. Only on the ground of earlier date of confirmation the recruitment of the private respondents being regular in the year 1960, the petitioner, who has been appointed in that cadre in the year 1972, cannot by any stretch of imagination claim any seniority. There is no merit in the writ petition, which is accordingly dismissed. (Justice Kurian Joseph) Chief Justice. October 20, 2010 (Justice Kuldip Singh) (sks/pankaj) Judge.