IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 261 of 2010 & connected matters. Reserved on: May 24, 2011. Decided on: May 31, 2011. 1. LPA No. 261 of 2010 D.K. Chandel & ors. Vrs. T.N. Negi & ors. 2. LPA No. 262 of 2010 Mohinder Pal Singh. Vrs. Jagdish Chand Negi & ors. 3. LPA No. 263 of 2010 Amar Nath. Vrs. Ajit Singh Negi & ors. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes. For the appellants(s): Mr. Dilip Sharma Sharma, Advocate. For the Respondents: Mr. Neel Kamal Sood, Advocate, for respondent No. 1. Ms. Anjula Khajuria and Mr. Trilok Jamwal, Advocates, for respondeants No. 2 & 3. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. Article 16(4) of the Constitution of India enables the State to make a special provision for reservation of appointment for posts in favour of any backward class of citizens. Article 16 (4 A), introduced by the Seventy Seventh amendment w.e.f. 17.6.1995 enables the State to make any provision for reservation in the matters of promotion with consequential seniority as well to any class or classes of posts in favour of scheduled castes and scheduled tribes who are not adequately represented in the services under the State. But, whether the reservation in the initial appointment would be available at the time of confirmation also is the question to be considered in this case. In other words, whether seniority is to be fixed on the basis of roster points for initial appointment is the moot question. 2 2. These appeals are at the instance of third parties, filed against the judgment dated 10.4.2009 in CWP(T) No. 2064 of 2008 and connected matters. The appellants though are the affected parties, they were not impleaded in the Writ Petitions. 3. The Writ Petitioners made a seemingly innocuous prayer seeking the protection of reservation on confirmation. The learned Single based on the instructions issued by the Government of India dated 20.4.1961 and 12.9.1968, having found that those instructions have not been followed by the Board, allowed the Writ Petition with a direction to the H.P. State Electricity Board to grant the benefit of reservation on confirmation to the writ petitioners. Though the appellants herein sought for a review before the learned Single Judge, the same was dismissed holding that the Court had only directed the implementation of the directions issued by the Government of India. In the instructions referred to above, the Government of India had directed that in posts filled up by direct recruitment, the reservation is required to be made for scheduled castes and scheduled tribes, both at the time of initial appointment on temporary basis as well as at the time of confirmation. It was also clarified in the judgment that the benefit of such judgment would be available only to the writ petitioners. The respondent-H.P. State Electricity Board accepted the judgment without any demur and implemented the same in the case of the writ petitioners. When similarly situated persons approached this Court, we made it clear that once a judgment is accepted in principle, the benefit thereof cannot be limited to the parties to the litigation and thus benefit was directed to be extended to similarly situated persons also. In those cases, the appellants and other affected parties have come up by way of review. 4. The H.P. State Electricity Board was constituted on 2.4.1971, under Section 5 of the Electricity (Supply) Act, 1948. In terms of Section 12 of the said Act, “ the Board shall be a body corporate by the name notified under sub- section (1) of section 5, having perpetual succession and a common seal, 3 with power to acquire and hold property both moveable and immoveable and shall by the said name sue and be sued.” 5. Under Section 79, the Board has been conferred with powers to make its own Regulations and Regulation 79 (c) pertains to “ the duties of officials and the other employees of the Board and their salaries, allowances and other conditions of service”. It is not in dispute that the H.P. State Electricity Board has its own Recruitment and Promotion Rules and those Rules do not contain any provision for seniority based on confirmation. Though the learned counsel for the writ petitioner made a vehement attempt to establish that the Government of India instructions issued in 1961 and 1968 have been adopted either by reference or incorporation, in view of the categoric stand taken by the Board that the same had never been adopted by the Board, the contention cannot be appreciated. On a specific query from the Court, the Board has filed a supplementary affidavit in the Review Petitions, which we may extract as such: “ I, M.P. Sood, aged about 52 years S/O Sh. M.L. Sood, resident of Shamshi, Distt. Kullu H.P. and presently working as Executive Director (Pers), HPSEB Ltd. Vidyut Bhawan, Shimla-4, do hereby solemny affirm and stated that being the Executive Director (Pers) of the Respondents, I am conversant with the facts of the case having access to the record and being duly empowered and authorized in this behalf, I am competent to swear and depose by way of the present affidavit. I further solemny affirm and state that the instructions issued vide OM.No.9/45/60-Estt.(D), dated 20th April, 1961 and OM.No.10/28/68-EST(SCT), dated 12.9.68 have never been adopted/implemented heretofore save and accept in cases where the orders and judgments have specifically mandated to us as such.” 6. In fact in the reply filed by the Board in the writ petition, the Board had taken a clear stand that ……….. “no reservation is provided in the matter of the confirmation to the reserved categories of S/C & S/T under the order/instructions in vogue.” It was also stated in the reply affidavit that the 4 confirmation of the staff is made based on the basis of the seniority, subject to the rejection of unfit in the respective cadre as per the procedure laid down in Chapter-XV, Rule 6 in the hand book on recruitment, Promotion and other service matters (Vol-I), which is reproduced below- “6. Seniority Confirmation should be made strictly on the basis of the seniority subject to the rejection of the unfit-In considering cases of officers for confirmation, the D.P.C. should not assess the relative merit of the candidates.” 7. Seniority in a grade is to be determined, as a general rule, on the basis of the total length of continuous service in the grade. Of course, the question of seniority arises only among the members of a service. One becomes ‘member of service’ only after confirmation on satisfactory completion of the probation within the prescribed time. Once thus confirmed, after being found fit, the member is entitled to get the seniority fixed from the date of his initial appointment and not according to the date of confirmation. That principle is settled by the Constitution Bench decision of the Supreme Court in Direct Recruit Class-II Engineering Officers’ Association vrs. State of Maharastra & others, reported in (1990) 2 SCC 715, wherein it has been held that “ once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.” 8. Article 16(4) of the Constitution enables the State to take affirmative action for providing for reservation in appointments. Article 16(4 A) provides for reservation in promotion. We are concerned in the instant case only with initial appointment. Reservation in appointment and seniority of the appointed are entirely two different concepts. While reservation enables a member of the deserving backward class to get an assured appointment, by providing roster points, his seniority would depend only on his continuous length of service, unless otherwise specifically provided in the Recruitment and Promotion Rules. Therefore, Roster points in initial appointment has nothing to 5 do with the seniority. Fixation of seniority is as per the Recruitment and Promotion Rules, in the instant case, to be counted on confirmation made strictly on the basis of seniority, subject to the rejection of the unfit, on the basis of total service in the grade. The Apex Court in Bimlesh Tanwar versus State of Haryana and others, reported in AIR 2003 SC 2000, has dealt with this principle at paragraph 37 of the judgment, which reads as follows: “37. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes.”…… 8. Learned counsel for the writ petitioners also made an attempt to persuade us to infer that the Government of India instructions have been followed by the Board in the matter of reservation in confirmation as well, stating that the confirmation has been de-linked from availability of permanent posts only as per the instruction dated 14.6.1994 and therefore, prior to 1994, it should be inferred that there was reservation at the time of confirmation as well. We are afraid, that contention cannot be appreciated. By the de-linking of confirmation from the availability of permanent posts, no such inference can be drawn. That instruction was provided only in view of the undue delay in declaring the probation and confirming them in service. In any case, in view of the specific affidavit that the Government of India instructions in 1961 and 1968 regarding reservations in confirmation had not been adopted by the Board, there is no question of any inference. 9. Yet another contention of the writ petitioners (private respondents) is that there was no dispute by the leaned counsel for the Board that the reservation in confirmation was followed in the Board. We fail to comprehend as to how such a stand could be taken on principle and as principle 6 since the stand in the reply-affidavit as extracted by us at para-5 of this judgment, is clearly to the contrary. A wrong concession made by a counsel before the Court cannot bind either the parties to the litigation or the affected parties. In Central Council for Research in Ayurveda and Siddha and another versus Dr. K. Santhakumari, reported in (2001) 5 SCC 60, it has been held at para 12 that “ If the learned counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot enure to the benefit of any party.” 10. It is really distressing and disturbing, if not shocking that the HPSEB implemented the judgment of the learned Single Judge despite its clear and legally correct stand in the reply. Stranger it is to note that the Board has not filed any appeal. No doubt, in seniority disputes, the employee has to take a neutral stand. But this is not a case of simple seniority dispute. It is certainly on a legal issue. The establishments like the Board and for that matter the Government and Private Sector undertakings should have a consistent stand. There shall be no compromise or concession in legal principles. They should hence have a healthy system of administration. A proper litigation policy is hence definitely a need of the hour in such establishments. 11. The upshot of the above discussions is that the stand taken by the learned Single Judge that the H.P. State Electricity Board is to follow the Government of India instructions issued in the year 1961 and 1968 in the matter of reservation on confirmation does not reflect the correct position in law. The H.P. State Electricity Board, being a body corporate, having been conferred with powers to frame its own regulations regarding recruitment and promotion and the Board having not adopted the Government of India instructions, either by way of legislation by reference or by incorporation or any other mode, it cannot be said that the Board is bound to follow the instructions issued by the Government of India. Seniority as per the Recruitment and Promotion Rules of the H.P. State 7 Electricity Board is to be decided by the length of continuous service in the grade, unless otherwise specified. There is no reservation at the time of confirmation. 12. The Writ Petitions were also liable to be dismissed on yet another ground that there is no challenge to the seniority list which has become final, when the same was published on 11.7.1991. Unless the list is challenged, with notice also to the affected parties, for whatever reason, the Court cannot look into the matter. The challenge is only for the benefit of reservation in confirmation. For easy reference, we may extract the prayer in the writ petition:- “In view of the statements made herein above, the applicant humbly prayed that the respondents may very kindly be directed to confirm the applicant strictly in accordance with the provisions mentioned in Annexure A-I and to give all consequential benefits accruing in his favour after the confirmation according to Rule 2.8 and further the respondents may kindly be directed to augment and extent the benefits of provisions mentioned in Annexure A-I i.e. Rule 2.8 and further to fill up the vacant posts of Assistant Engineer by extending said benefits to Scheduled Tribes Candidates. Any other relief as to this Hon’ble Court may deem fit in the facts and circumstances of the case may also be granted in favour of applicant.” 13. The relief if granted would necessarily result in unsettling the settled seniority. In issues pertaining to seniority and promotion, unless the affected parties are on the party array, the Writ Petitions are liable to be rejected on the sole ground. The official respondents in such cases may not necessarily take up all contentions as are available to the aggrieved parties and hence the Court should always be cautious in dealing with such matters, behind the back of the affected parties. In that context, in Prabodh Verma and others versus State of Uttar Pradesh and others, reported in (1984) 4 SCC 251, at para-28 it has been held that “A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large………” 8 This view was consistently followed in subsequent decisions also. ( See the decision in All India SC & ST Employees’ Association and another versus A.Arthur Jeen and others, reported in (2001) 6 SCC 380, in Indu Shekhar Singh and others versus State of U.P. & others, reported in (2006) 8 SCC 129, in Km. Rashmi Mishra versus M.P. Public Service Commission and others, reported in (2006) 12 SCC 724, and in Suresh versus Yeotmal District Central Cooperative Bank Limited and another, reported in (2008) 12 SCC 558.) 14. Therefore, the appeals are allowed, the common judgment passed in CWP(T) 2064 of 2008, dated 10.4.2009 and connected cases, is set aside and the Writ Petitions are dismissed. (Justice Kurian Joseph), Chief Justice. May 31, 2011. ( Justice Sanjay Karol), (karan) Judge.