IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.119 of 2009 (S/B) Uttarakhand Jal Sansthan ………..Petitioner Versus Uttarakhand Public Services Tribunal, Dehradun & another ….Respondents Mr. Rakesh Thapliyal, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl. C.S.C. for the State/respondent no.1. Mr. Alok Mehra, Advocate for the respondent no.2. Dated: 28th August, 2010 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh, C.J. (Oral) The facts of this case are not in dispute. The respondent no.2 was appointed in the Work Charge Establishment on 08.10.1976. By an order dated 4th May, 1977, the respondent no.2 was appointed in the regular establishment w.e.f. 1st May, 1977. In a claim petition filed in the year 2008, the respondent no.2 contended that his seniority should be taken in to account w.e.f. 8th October, 1976, i.e. the date he was appointed in the Work Charge Establishment, and not from 1st May, 1977, when he was appointed in the regular establishment. 2. The Tribunal, according to us, did not appreciate the true and correct ratio of the decision of the Hon’ble Supreme Court rendered in the case of D.P. Sharma 2 Vs. Union of India reported in SLR 1989 (1) Page 780 and Chief Commissioner of Income Tax Vs. V.Subba Rao (2004) SCC (L&S) 201. 3. In D.P. Sharma Vs. Union of India, the question was whether in terms of Rules framed subsequent to appointment, the seniority should be counted from the date of confirmation or from the date of appointment. The said question had no relevance to the case at hand. In Chief Commissioner of Income Tax Vs. V.Subba Rao, the question was whether there was any justification not to take in to account the services rendered by the appointees for the period after their appointment upon selection. That case too has no relevance whatsoever in the instant case. 4. It appears to us that the Tribunal was carried away by the decision rendered by the Hon’ble Supreme Court in Agit Kumar Rath Vs. State of Orissa reported in AIR 1990 SC 1607. In that, the question was in respect of an appointment, not an ad-hoc appointment, which continued and matured in to a regular appointment. In other words, the appointment, which was regularized subsequently, though was an irregular appointment, but the same continued until the regular appointment and even thereafter. 5. In the instant case, the initial appointment of the respondent no.2 was in a different establishment, namely, Work Charge Establishment. By the second appointment, the petitioner was given an appointment in the regular department. In the circumstances, the ratio of the decision of the Hon’ble Supreme Court rendered in the case of Agit Kumar Rath Vs. State of Orissa has no application at all. 6. Thus, concluding, we set aside the judgment and order of the Tribunal rendered in Claim Petition no.15 of 2008 dated 23rd September, 2008 and allow the writ petition to that extent. (V.K. Bist, J.) (Barin Ghosh, C.J.) 28.08.2010 28.08.2010 Arpan