IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 679 of 2004. Judgment reserved on: 11.8.2009 Date of decision: 17.8.2009 Ms.Suman Kaushal …. Petitioner Versus Indian Council of Forestry Research and Education & Ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ? No For the petitioner: Shri Dalip Sharma, Advocate. For the respondents: Shri Sandeep Sharma, Assistant Solicitor General of India, for respondents No.1 and 2. Shri Surinder Sharma, counsel for respondent No.3. _____________________________________________________ Deepak Gupta, J. The writ petitioner by means of this writ petition has challenged the order dated July 13, 2004 whereby the original application filed by her was rejected. The undisputed facts are that the petitioner joined as Lower Division Clerk (LDC) in the Environmental Research Station, Shimla on 1.5.1979. This station was 2 merged with the High Level Conifers Research Centre, Shimla and both the institutes were clubbed and named as Conifers Research Centre (CRC). As per the Rules applicable to the employees of the CRC, recruitment to the post of Upper Division Clerk (UDC) is 75 per cent by promotion from LDCs and 25 per cent on the basis of competitive examination from in service employees of various categories. The admitted case is that on 14.8.1987 the respondent No.3 was appointed as Upper Division Clerk on deputation to the CRC. He applied for regularization and was regularized as Upper Division Clerk on 17th May, 1989. The respondent No.3 prior to his coming on deputation to the CRC was working as Lower Division Clerk in the office of the Garrison Engineer, Shimla Hills, Kasauli. When respondent No.3 was permitted to be absorbed, the petitioner objected to his absorption on the ground that the Rules did not permit deputation or absorption of the deputationist. The petitioner herself was promoted as UDC on 31.1.1990. Thereafter, the petitioner did not do anything till 1996. The petitioner made a representation on 7.5.1996 challenging the absorption of 3 respondent No.3. This representation was rejected on 11.7.1996. A provisional seniority list of UDCs was circulated on 15th July, 1996. Thereafter, the petitioner filed a writ petition before this Court. This writ petition was transferred to the Central Administrative Tribunal and was decided there. Hence the present writ petition. Sh.Dilip Sharma, learned counsel for the petitioner has submitted that the Rules do not permit any recruitment to be made by way of deputation and, therefore, the action of the respondents No.1 and 2 in appointing respondent No.3 as UDC on deputation is illegal. The absorption is also totally illegal since the appointment of the respondent No.3 is contrary to the Rules. Even if his appointment is not to be set aside, the petitioner should be granted seniority over and above the respondent No.3. The stand of the respondents No.1 and 2 is that as per the R&P Rules, 75 per cent of the posts of the UDCs were to be filled in by promotion from LDCs having at least eight years regular service in the grade. According to them, neither the petitioner nor any other LDC had the requisite service and per force the respondents No.1 and 2 had to appoint respondent No.3 on deputation basis. It 4 is further contended that the petitioner accepted the absorption of the respondent No.3 as UDC in the year 1989 and, therefore, she cannot be permitted to challenge the same at this belated stage. The respondent No.3 in his reply has taken a specific plea that the petition is hit by the limitation and principles of delay and laches. It is also contended that the petitioner is not entitled to challenge the absorption of the respondent No.3. As already noted above, after the order was passed by the respondents No.1 and 2 on 17th May, 1989 allowing the absorption of respondent No.3, the petitioner made a representation challenging the said absorption. This representation appears to have been dealt with on File No.1-1(7)CRC and Note Nos.91 to 93 were put up on 22.8.1989 for the information of the petitioner. The petitioner in response to this note sent a letter on 23.8.1989 to the Coordinator of the C.R.C which reads as follows:- “With reference to the note on file No.1- 1(7)CRC bearing dated 22.8.1989 (numbered 91 to 93), while I have immense pleasure to note that the present U.D.C. who was on deputation has been absorbed permanently in our department, I wish to place on record that at any time my elevation to the next rank shall have retrospective effect and that 5 too priority over the absorption orders of the incumbent permanently absorbed or this will in no way effect my future rights keeping in view my seniority amongst the LDCs in Shimla Centre otherwise, I appeal and lodge protest. Sir, I hope the administration will understand the sentiments of a woman employee.” A bare reading of this letter shows that the petitioner accepted the absorption of the respondent No.3 in the Department on permanent basis. No doubt she put a caveat that when she is promoted, her promotion should be with retrospective effect and she should be given seniority over and above respondent No.3. The petitioner herself was promoted as UDC w.e.f. 31.1.1990. This was the time when the petitioner should have lodged her protest and filed litigation if necessary. She did not lodge any protest and accepted her promotion as UDC w.e.f. 31.1.1990. She kept silent for almost more than six years and only on May 7, 1996 she filed a fresh representation. On behalf of the petitioner it is urged that the cause of action arose in favour of the petitioner only when the tentative seniority list was issued. Prior to that she was never shown junior to the respondent No.3. We 6 are unable to accept this argument. The respondent No.3 had been appointed as UDC prior to the petitioner. The petitioner accepted the appointment of the respondent No.3 and, therefore, it does not lie in her mouth to challenge the appointment of the respondent No.3 even if it was against the Rules. The petitioner willingly accepted this fact. No doubt the petitioner while accepting the appointment of respondent No.3 had reserved the right to claim seniority over respondent No.3 as and when she was appointed as UDC. Therefore, the cause of action arose to the petitioner on 31.1.1990 when she was appointed as UDC with immediate effect. It was obvious that her request that she be granted seniority over respondent No.3 was not accepted. The petitioner should have immediately approached the Court. By keeping silent for a period of six years, the petitioner waived her right, if any, to challenge the appointment as well as the seniority granted to respondent No.3. Once the petitioner had accepted the appointment of respondent No.3 and had willingly stated that she is not challenging his appointment as UDC, she in fact could not claim seniority over him. Seniority has to be reckoned from the date an employee is appointed to a 7 post. The respondent No.3 was appointed as UDC on deputation on 14.8.1987 and was absorbed as UDC permanently on 17.5.1989. The petitioner was only appointed as UDC w.e.f. 31.1.1990, therefore, she had to rank junior to the respondent No.3. The learned Tribunal rightly held that the petition was highly belated. We cannot loose sight of the fact that the respondent No.3 lost his lien in his parent Department because of his permanent absorption in the C.R.C. After so many years, the clock cannot be turned back to the dis-advantage of respondent No.3. Therefore, even if his absorption was illegal, the petitioner having willingly accepted the same and having slept over the matter for more than six years is not entitled to any relief. In view of the above discussion, we find no merit in the writ petition. The order of the learned Tribunal calls for no interference. The writ petition is accordingly rejected. No order as to costs. ( Deepak Gupta ) Judge August 17, 2009 (V.K.Ahuja) (m) Judge