IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 2064/2008 with CWP (T) Nos.2076, 2089 and 2129 of 2008 Reserved on 6.4.2009 Decided on:10.4. 2009 1. CWP (T) No. 2064/2008 T.N. Negi …Petitioner. Versus Himachal Pradesh State Electricity Board and another. …Respondents. 2. CWP (T) No. 2076/2008 Jagdish Chand …Petitioner. Versus Himachal Pradesh State Electricity Board and another. …Respondents. 3. CWP (T) No. 2089/2008 Ravinder Singh Negi …Petitioner. Versus Himachal Pradesh State Electricity Board and another. …Respondents. 4. CWP (T) No. 2129/2008 Ajit Singh Negi …Petitioner. Versus Himachal Pradesh State Electricity Board and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. 2 Whether approved for reporting ?1. Yes For the petitioners : Mr. Neel Kamal Sood, Advocate. (in all the petitions) For the Respondents : Mr. Shashi Shirshoo, Advocate. (in all the petitions) Rajiv Sharma, J. Since common questions of law and facts are involved in all these petitions, the same are being disposed of by a common judgment. Brief facts necessary for the adjudication of these petitions are that petitioner T.N. Negi was appointed as a Junior Engineer with the respondent-Board on 15.2.1979. Petitioner Jagdish Chand was appointed as a Junior Engineer in the year 1982. Petitioner Ravinder Singh is their contemporary. Ajit Singh Negi was appointed as a Junior Engineer in the month of 1977. They made representations on 13.3.1991, 9.5.1991 and 20.4.1992 seeking reservation in confirmation on the basis of instructions issued by the Central Government. The representations made by the petitioners were rejected as per the contents of the reply. The seniority list was issued on 11.7.1991 of the category of Junior Engineers as it stood on 1.1.1990. The petitioners were not granted the benefits of the instructions issued by the Central Government by granting them concession of reservation in confirmation. The case set up by the petitioners is that as per the instructions issued by the Central Government on 20.4.1961 and 12.9.1968 there is a provision of reservation of Scheduled Cast/Scheduled Tribe at the time of confirmation. The case of the respondent-Board is that the petitioners had been granted the benefit of reservation at the time of their initial 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes 3 appointment, however, they are not entitled to get reservation in confirmation. The further case of the Board is that the petitioners have not raised any objection at the time of issuance of seniority list in the year 1991. Mr. Neel Kamal Sood, Advocate has strenuously argued that the petitioner who were recruited against the vacancies reserved for Scheduled Tribes were entitled to get the benefit of reservation at the time of confirmation and accordingly their seniority was to be regulated on the basis of the instructions dated 20.4.1961 and 12.9.1968. He further contended that as per the instructions issued by the Central Government, Scheduled Caste/Scheduled Tribe officer shall rank senior to temporary/officiating officer of the grade and amongst the permanent grade, their seniority will follow their order of confirmation. He lastly contended that these instructions issued by the Central Government were applicable to the employees of the Board since all the instructions issued by the Central Government were being followed by the State of Himachal Pradesh and the Board. On the other hand, Mr. Shashi Shirsho, Advocate has submitted that the Board has framed its own Recruitment and Promotion Rules and there is no provision for reservation in confirmation. He then contended that the State Government had de-linked the reservation in confirmation in the year 1994 and the confirmation is to be granted on the basis of the availability of the permanent sanctioned posts. I have heard the learned counsel for the parties and perused the record carefully. The petitioners were appointed against the posts reserved for Scheduled Tribes. The instructions issued by the Central Government vide OM No.9/45/60-Estt(D), dated 20th April, 1961 and O.M. No. 4 27/4/67(II)-Est(SCT), dated 12th September, 1968 were in vogue at the time of their appointments. The instructions dated 20.4.1961 reads thus: “Subject:- General principles for determining seniority of various categories of persons employed in Central Services, Interpretation of relating to seniority of direct recruits who are confirmed in an order different from the original order of merit, including those belonging to scheduled castes tribes. The undersigned is directed to invite reference to paragraphs 3 and 4 of the annexure to this Ministry’s Office Memorandum No.9/11/55/-RPS, dated the 22nd December, 1959, on the subject noted above, which provide that permanent officers of each grade shall be ranked senior to persons who are officiating in that grade and that notwithstanding this provision 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 recommendations of the Union Public Service Commission or other being senior to those appointed as a result of a subsequent selection Enquiries have been received in this Ministry from time to time whether after confirmation in accordance with the special representation orders Scheduled Castes/Scheduled Tribes candidates should be treated senior to other temporary/officiating officers of the grade concerned even though the latter might have been recruited earlier to that grade or secured a higher order of merit in the same selection than the former. 2. Ordinarily, the order of confirmation is determined by the position occupied by a candidate in the merit list, but where a departure is made from the normal rule and one occupying a lower position is given preference for confirmation, he would legitimately expect exceptional treatment also in the matter of 5 seniority. It is with this view that a proviso has been added to para 4 of the annexure referred to above which provides that where persons recruited/promoted initially on a temporary basis are confirmed subsequently in an order different from the order or merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit. This means that seniority accompanies confirmation. Apart from the position stated above, grant of permanency, following a period of temporary appointment stands on the same footing as a permanent appointment made ab initio, and the fact that a person belonging to Scheduled Caste or a Scheduled Tribe had held a temporary appointment before he was made permanent would not justify treating him less favourably than if he had been appointed permanently to a reserved vacancy straightaway. It often happens that a Scheduled Caste or a Scheduled Tribe candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are not appointed at that time. If such candidates are appointed in the following year, they are not entitled to higher-seniority on the ground that in the previous year they had obtained a higher position in the merit list. The position is not basically different when the initial appointments are made from the same list, and at the same time on a temporary basis, and the Scheduled Caste or the Scheduled Tribe employee is, in spite of his lower position in the merit list, made permanent earlier in accordance with the special representation orders. 3. In the light of the position explained above it is clarified that after confirmation, the Scheduled Caste/Scheduled Tribe candidates will rank senior to the temporary/officiating officers of the grade and amongst the permanent officers of that grade their seniority will follow the order of their confirmation. It is requested 6 that the above clarification may kindly be brought to the notice of all concerned in the Ministries including their Attached and Subordinate Officers for information and guidance.” The gist of the instructions issued in the year 1961 was that after confirmation, Scheduled Caste/Scheduled Tribe candidates would rank senior to the temporary/officiating officers of the grade and amongst the permanent officers of that grade their seniority will follow the order of their confirmation. The instructions issued on 12.9.1968 read thus: “Subject:- Reservations for Scheduled Castes and Scheduled Tribes in services-Confirmations of temporary employees. As the Ministry of Finance etc. are aware, in posts/services filled by direct recruitment, reservation is required to be made for Scheduled Castes and Scheduled Tribes both at the time of initial appointment on a temporary basis as well as at the time of confirmation. In posts filled by promotion, however, there is no reservation at the stage of confirmation, vide para 3(4) of this Ministry’s O.M. No.1/12/67- Est. (C), dated 11-7-1968. Ministry of Finance etc. are requested to ensure that reservation is made for Scheduled Castes and Scheduled Tribes while making confirmation against posts/services filled by direct recruitment. 2. Since according to the general principles of seniority, as laid down in this Ministry’s O.M. No.9/11/55-RPS dated 22.12.1959, all permanent officers of each grade are to be tanked senior to persons who are officiating in that grade, it was clarified in O.M. No. 9/45/60-Estt (D), dated 20.4.1961 (copy enclosed) that after confirmation, the Scheduled Caste/Scheduled Tribe officers shall rank senior to temporary/officiating officers of the grade and amongst the permanent officers of that grade, their seniority will follow the order of their confirmation. The instructions in the aforesaid O.M. dated 20.4.1961 are again brought to the notice of the Ministries etc. for guidance and strict observance. 7 3. Ministry of Finance etc. are requested to bring the above instructions to the notice of all concerned.” The gist of these instructions is that at the time of filling up the posts on service by way of direct recruitment, reservation is required to be made for Scheduled Castes and Scheduled Tribes both at the time of initial appointment on a temporary basis as well as at the time of confirmation. It is not disputed by Mr. Shashi Shirshoo that the instructions issued by the Central Government and the State Government were followed by the respondent-Board. The respondent-Board has not placed on record any independent regulations/rules for determining the confirmation for the relevant period. The Board in fact has been following the rules framed by the Central Government and in turn were also adopted by the State Government for regulating confirmation. It is evident from the combined reading of both these instructions quoted hereinabove that the persons, who were recruited by way of direct recruitment, were entitled to get a reservation for confirmation as well rank senior as per the principles laid down therein. The petitioners were entitled to get benefit of reservation at the time of confirmation also and their seniority was to be determined accordingly. The respondent-Board has not extended the benefit of reservation towards their confirmation. The impact of not grating this reservation in confirmation was that the petitioners though were required to be ranked senior, were made juniors to the candidates belonging to other categories. The seniority list was issued in the year 1991 as it stood in the year 1990. The petitioners made representations jointly on 13.3.1991, 9.5.1991 and 20.4.1992. The same were rejected by the respondent-Board as per the averments contained in the reply. Since the petitioners have not been given the benefit of reservation in confirmation 8 and were also deprived of their right of promotion to the post of Assistant Engineer. Mr. Shashi Shirshoo has drawn the attention of the Court to the instructions issued by the State Government as per para 14.17 contained in Handbook on Personnel Matters, Volume-I (Second Edition) whereby the procedure for confirmation has been simplified and confirmation has been de-linked from availability of permanent posts. It will be appropriate at this stage to quote sub-para 5 of para 14.17 which reads thus: “(5) Reservation for SC/ST As a result of introduction of confirmation only at the entry stage and the delinking of confirmation from the availability of permanent posts, the need for reservation at the time of confirmation in posts and services filled by Direct Recruitment as per the existing instructions will cease to exist as everyone who is eligible for confirmation will be confirmed.” It is evident from the bare reading of sub-para 5 of para 14.17 that after the introduction of confirmation only at the entry stage and delinking of confirmation from the availability of permanent posts, the need of reservation at the time of confirmation in posts and services filled by Direct Recruitment as per the existing instructions will cease to exist as everyone who is eligible for confirmation will be confirmed. These instructions have been notified vide O.M. No. Per (AP-II) B (15)-2/75-Pt dated 14.6.1994. It is thus clear that the decision to do away with the reservation in confirmation has been taken by the State Government for the first time vide notification dated 14.6.1994 and before that the instructions quoted hereinabove were applicable qua the employees of the State Government as well as respondent-Board. It is clarified that after the instructions issued on 14.6.1994 there cannot be any reservation for confirmation. 9 The respondent/Board has not followed the instructions issued by the Central Government in the year 1961 and 1968. The stand taken by the Board in its reply is contrary to these instructions. The effecft of instructions issued on 20.4.1961 and 12.9.1968 was that the employees belonging to Scheduled Caste/Scheduled Tribe category were to be given reservation in confirmation and their seniority was to be worked out accordingly. It is clarified by way of abundant precaution that the instructions issued in the year 1961 and 1968 will not take away any vested right of the candidates belonging to general category and will not prejudicially affect their rights and interests as argued by Mr. Shashi Shirshoo. Their seniority will not be taken away or interfered by these instructions. The rules only provide for giving weightage benefit to the petitioners of belonging to Scheduled Caste/Scheduled Tribe category. It is also settled law by now that nobody has any fundamental right to a particular seniority. It cannot be the case of the Board that because of these instructions the cases for promotion of the candidates belonging to general category have been taken away. (see :Union of India and others versus Dr. S.Krishna Murthy and others, (1989) 4 SCC 689.) Accordingly, the petitions are allowed. The respondents are directed to take steps to confirm the petitioners by giving them the benefits of instructions issued vide OM No.9/45/60-Estt(D), dated 20th April, 1961 and O. M. No.10/28/68-EST(SCT), dated 12.9.1968. The respondents after giving the petitioners benefit of confirmation as per these instructions will re-draw the seniority-list and consider them for further promotion with all consequential benefits. It is made clear that in case the respondent- Board finds it difficult to promote the petitioners against any existing posts, in that eventuality, it will be open to the Board to create supernumerary 10 posts. The Board shall not revert any person while implementing the judgment. The benefit of judgment is confined to the petitioners alone, who had been agitating the matter for almost two decades. There will, however, be no order as to costs. 10.4. 2009 (Rajiv Sharma ), J. *awasthi*