Himachal Pradesh High Court

Decided On: 19Th November vs State Of H.P. And Others on 19 November, 2024

Author:
Jyotsna Rewal Dua

Bench:
Jyotsna Rewal Dua

2024:HHC:12276

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.2662 of 2023
Decided on: 19th November, 2024

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Dr. Ashok Verma .....Petitioner

Versus

State of H.P. and others .....Respondents

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Coram

Ms. Justice Jyotsna Rewal Dua

Whether approved for reporting? 1 Yes.

For the Petitioner: Mr. Hamender Singh Chandel, Advocate.

For the Respondents: Ms. Leena Guleria, Deputy Advocate
General, for respondents No.1 and 2.

Mr. Vishwa Bhushan, Advocate, for
respondent No.3.

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Jyotsna Rewal Dua, Judge

The present is a seniority dispute between the

petitioner and respondent No.3. Petitioner's grievance is to

the order dated 03.05.2023 (Annexure P-10) passed by the

Principal Secretary (Health) to the Government of Himachal

Pradesh-respondent No.1 that unsettled the seniority

position being enjoyed by the petitioner over respondent

No.3 since the year 2009 and made him junior to the

aforesaid respondent.
Whether reporters of print and electronic media may be allowed to see the order? Yes.
2024:HHC:12276

2. Contours of the seniority dispute may now be

noticed:-

2(i). Petitioner and respondent No.3 both are

presently serving as Professor Obstetrics and Gynecology

(OBG) in Dr. Rajendra Prasad Government Medical College

and Hospital, Kangra at Tanda (in short 'Dr. RPGMC

Tanda').

2(ii). Petitioner was appointed as Assistant Professor

(OBG) on 30.07.2009 on direct recruitment basis and

posted as such in Dr. RPGMC Tanda.

Respondent No.3, serving as Medical Officer ever

since 19.01.1991, was promoted to the post of Assistant

Professor on 26.11.2009 and posted as such in Dr. RPGMC

Tanda.

It is an admitted factual position that the

petitioner and respondent No.3 remained posted in the

same specialty in the same department and the petitioner

enjoyed higher status than respondent No.3 in view of his

prior appointment as Assistant Professor.

2(iii). Respondents No.1 and 2 issued tentative

seniority list of Assistant Professors in Dr. RPGMC Tanda

as on 01.01.2015 vide office memorandum dated

09.03.2015. Name of the petitioner was reflected at
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Sr. No.1, whereas that of respondent No.3 was shown at

Sr. No.2 of the seniority list with their dates of

appointment/promotion to the post reflected as 31.07.2009

and 26.11.2009, respectively.

2(iv). Respondents No.1 and 2 convened meeting of

the Departmental Promotion Committee (DPC) for making

promotion of eligible Assistant Professors (OBG) in Dr.

RPGMC Tanda. On the basis of recommendations of the

DPC, the petitioner, serving as Assistant Professor, was

promoted as Associate Professor vide notification dated

23.05.2015. At that time, respondent No.3 was serving as

Assistant Professor in the same department and in the

same college.

2(v). Petitioner was further promoted to the post of

Professor in the Department of OBG in Dr. RPGMC Tanda

vide notification/office order dated 30.12.2019. That is how

the petitioner is presently serving as Professor (OBG) in Dr.

RPGMC Tanda.

While the petitioner was serving as Professor,

respondent No.3, who was then serving as Assistant

Professor, was promoted to the post of Associate Professor

in the Department of OBG in Dr. RPGMC Tanda vide

notification/office order dated 06.01.2020.
2024:HHC:12276

2(vi). One year after the promotion of respondent No.3

as Associate Professor, he moved a representation on

08.02.2021 (Annexure R3/1) to respondent No.1, raising a

seniority issue vis-à-vis petitioner. Respondent No.3

claimed that in terms of Chapter 13 of the Handbook on

Personnel Matters, Volume-I, Second Edition, Government

of Himachal Pradesh, seniority was required to be

determined as per the roster of appointment as Assistant

Professor and not as per the date of joining/promotion/

appointment in the same calendar year. Relevant para from

the representation reads as under:-

"10. The rule which makes me senior to Dr. Ashok Verma
was not considered while promoting him as associate
professor which says that seniority of the person should
be determined as per roster of appointment as assistant
professor and not as per date of joining, if
promoted/appointed in the same calendar year (before
31st December of same year). This rule has been quoted
from "Handbook of Personnel Matters Vol.-I. Second
Edition, Govt. of HP. Chapter 13. Seniority Subtitle-6.
Relative seniority of direct recruits and promotes." I
regret for the late representation as I was not aware of
this before said rule."

Respondent No.3 raised a grievance in his

representation that promotion to the post of Associate

Professor was wrongly given to the petitioner on

23.05.2015. Respondent No.3 ought to have been

considered for promotion to the post of Associate Professor,

being senior to the petitioner in view of his having been
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promoted to the post of Assistant Professor. That by

applying the instructions contained in Chapter 13 of the

Handbook on Personnel Matters, the seniority of direct

recruits vis-à-vis promotees had to be determined in the

ratio of 50:50 in the manner as (1) Promotee, (2) Direct

Recruit (3) Promotee, (4) Direct Recruit. Respondent No.3,

being promotee, should have been reflected at Sr. No.1 of

the seniority list of Assistant Professors. These instructions

had not been followed by respondents No.1 and 2 while

determining seniority of Assistant Professors, which caused

prejudice to respondent No.3. Respondent No.3 sought to

place himself above the petitioner.

Representation dated 08.02.2021 was followed

by a supplement dated 15.02.2021 (Annexure R3/2). In the

supplement, respondent No.3 highlighted the issue raised

by him in the above extracted paragraph 10 of his

representation and further submitted that the seniority list

of Assistant Professors was never circulated to him.

2(vii). While representation of respondent No.3 was

being deliberated upon in the respondent-Health

Department, he while serving at that time as Associate

Professor, was further promoted to the post of Professor on

06.09.2022.
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Post of Professor is the feeder category post for

promotion to the post of Principal/Head of Department

(HoD) (administrative post). The post of Principal/HoD is

filled up 100% by promotion from the eligible Professors.

2(viii). Respondent No.3 instituted Civil Writ Petition

No.96 of 2023. Petitioner was not impleaded as party to the

writ petition. During hearing of the said writ petition, relief

was confined concerning decision upon the pending

representations of respondent No.3 dated 08.02.2021 and

15.02.2021. Submission was made for respondent No.3

(petitioner therein) that he would be satisfied in case

respondent No.1 is directed to dispose of his

representations within some time bound manner. In view of

this submission, the writ petition was disposed of on

20.03.2023, directing respondent No.1 to dispose of the

representations of respondent No.3 in accordance with law,

preferably within six weeks. The merits of the matter were

not gone into by the Court.

2(ix). Pursuant to the above direction, respondent

No.1 passed the impugned order on 03.05.2023 (Annexure

P-10). The order directed placing respondent No.3 above the

petitioner as Assistant Professor (OBG) and on that basis,

he was ordered to be placed above the petitioner in the final
2024:HHC:12276

seniority list of Assistant Professors as on 01.01.2015.

Subsequent DPCs were also ordered to be reviewed. The

order was passed on the basis of Clause/Subtitle 6 of

Chapter 13 of the Handbook on Personnel Matters, Vol-I,

Second Edition pertaining to provisions of determining

relative seniority between direct recruits and promotees.

It is at this stage the petitioner instituted

present writ petition seeking following substantive relief:-

"i) That the impugned order dated 03.05.2023, Annexure
P-10, may be held illegal and quashed and set aside."

Vide interim order dated 10.05.2023, the

operation of the impugned order dated 03.05.2023

(Annexure P-10) was stayed.

3. Submissions:-

3(i). Submissions made by learned counsel for the

petitioner are primarily focused upon the principle that

settled seniority cannot be unsettled after a long period of

time. That respondent No.3 had acquiesced in the seniority

position assigned to the petitioner ever since the year 2009.

On the basis of higher seniority position of the petitioner,

he had been promoted as Associate Professor and then

Professor prior in time to respondent No.3. Respondent

No.3 was very well aware of the higher seniority position

and status enjoyed by the petitioner w.e.f. the year 2009.
2024:HHC:12276

Therefore, on the basis of executive instructions containing

the principles of determining seniority between direct

recruits and promotees, respondents No.1 and 2 cannot be

allowed to unsettle the seniority position of the petitioner,

which he enjoyed w.e.f. 2009 over respondent No.3. It was

also submitted that while passing the impugned order,

petitioner had not even been heard, though his rights were

being deliberated upon and then adversely affected by the

impugned order.

3(ii). Argument of learned counsel for respondent

No.3 is that respondent No.3 was not aware at the relevant

time about the principles to be applied for determining the

seniority between direct recruits and promotees. He

acquired the knowledge of the applicable instructions in the

year 2021. Immediately thereafter, he represented for

rectifying the errors that had crept in the seniority list of

Assistant Professors and for reviewing the promotion of the

petitioner to the post of Associate Professor and thereafter

as Professor. The tentative seniority list of Assistant

Professors dated 09.03.2015, reflecting the petitioner at Sr.

No.1 and respondent No.3 at No.2, was never circulated.

Respondent No.3 was not aware of the seniority positions.

Hence, there was no delay and laches in respondent No.3's
2024:HHC:12276

representing to respondent No.1 against the incorrect

seniority positions assigned to the petitioner and

respondent No.3.

Learned counsel for respondent No.3 also

submitted that respondent No.3 had prayed for his being

placed above the petitioner in view of the instructions

contained in Chapter 13 of the Handbook on Personnel

Matters, Vol-I, in terms of which, while determining

seniority between direct recruits and promotees

appointed/promoted in the same calendar year, roster of (1)

Promotion, (2) Direct (3) Promotion (4) Direct, was required

to be followed. Had the respondents properly implemented

the instructions, respondent No.3, being promotee, would

have ranked senior to the petitioner. This was an error

committed by respondents No.1 and 2 while drawing the

seniority list and while considering the petitioner as senior

to respondent No.3 throughout ever since his recruitment

as Assistant Professor in the year 2009. The petitioner

became aware of the instructions only in the year 2021,

hence, his representation and cause of action did not suffer

from delay and laches. Reliance in this regard was placed

upon Ajay Kumar Shukla and others Versus Arvind Rai
2024:HHC:12276

and others2, more particularly para 39 thereof, which

reads as under:-

"39. The plea to defend the seniority list prepared contrary to
the statutory provisions on the ground of delay would
be a difficult proposition. Apart from the submission of
the appellants that there is no delay as they came to
know of the three separate lists only in March 2010,
even if it is assumed that there was some delay and a
fresh seniority list was being prepared in 2009-2010
again contrary to the provisions of statutory rules, such
seniority list cannot be sustained or defended on the
ground of delay of five years."

3(iii). Learned Deputy Advocate General raised the

same points as put forth by learned counsel for respondent

No.3.

4. Having heard learned counsel on both sides, I

am of the considered view that in the given facts and

circumstances, respondent No.3 cannot be permitted to

raise seniority dispute at this stage. The impugned order

dated 03.05.2023 requires to be interfered with. This is for

the following reasons:-

4(i). Legal position may first be noticed:-

In Pervesh Kumari Versus State of Himachal

Pradesh & others3, the principle of law that settled

seniority positions cannot be unsettled after a long lapse of
(2022) 12 SCC 579
LPA No.165 of 2022, decided alongwith connected matter on 14.05.2024.
2024:HHC:12276

time, as enunciated in several precedents, was noticed as

under:-

"v) It is well settled principle of service jurisprudence that
settled seniority positions cannot be unsettled after long
lapse of time.

In
Dayaram Asanand Gursahani vs. State of
Maharashta & others
, (1984) 3 SCC 36, in absence of
satisfactory explanation for delay of nine years in
questioning under
Article 226
of the Constitution of
India, the validity of seniority assigned to the petitioner,
his claim in that regard was held not entertainable.

In
B.S. Bajwa & another vs. State of Punjab &
others
, (1998) 2 SCC 523, a grievance was raised about
seniority positions by the incumbents in the year 1984
though they had entered the department in 1971-72.
During this entire period of more than a decade they
were all along treated as junior to the other persons.
The Apex Court held that inter se rights had crystallised
which ought not to have been reopened after the lapse
of such a long period; At every stage, the others were
promoted, seniority positions were known to the
aggrieved incumbents right from the beginning. It was
held that in service matters the question of seniority
should not be reopened in such situations after lapse of
a reasonable period because that results in disturbing
the settled position which is not justifiable. Inordinate
delay in making a grievance is sufficient in itself to
decline interference under
Article 226
of the Constitution
and to reject the writ petition.

The aforesaid pronouncements were considered
by the Hon'ble Apex Court in
Ajay Kumar Shukla &
others vs. Arvind Rai & others
, Civil Appeal No.5966 of
2021 along with connected matter, decided 08.12.2021,
where the seniority list in question was held to have
been prepared in contravention to the Recruitment &
Promotion Rules. Hon'ble Apex Court held that the
appointing authority would be bound by the Statutory
Rules and any violation in this regard to the Statutory
Rules would vitiate the seniority list. The same would
be arbitrary, de hors the Rules and in conflict with

Articles 14

& 16
of the Constitution. The only exception
to above would be where there is unreasonable delay
which is unexplained.

In this case, the seniority positions finalized on
7.01.2000 and accepted by all concerned were to be
2024:HHC:12276

altered by the State vide Office Memo dated
20.02.2020. The purported premise for alteration was
that incorrect principle was adopted by the State for
framing the seniority list on 7.01.2000. Whether the
reason assigned was justified, correct or not; whether
the State had drawn correct seniority list in the year
2000 or not, is not important at this stage. What is
significant is that more than twenty years have gone by
from the date of finalization of first seniority list of
Patwaris drawn on 7.01.2000. This seniority list has
been accepted by all concerned including the appellants
for more than twenty years. It has been acted upon by
the State during all this period. Promotions of the
incumbents have been effected on the basis of this
seniority list. Therefore, on that ground alone, the
seniority list finalized on 7.01.2000 could not have been
altered in the year 2020. In the instant case, seniority
list was drawn on 7.01.2000 purportedly on the basis
of Rules 15(A) & (B) of the 1992 R&P Rules. It is not that
the list was contrary to the R&P Rules. The only thing
that can be said at best is that Rules were not very
happily worded. Be that as it may, the appellants are
deemed to have knowledge of the seniority list, their
seniority positions as well as the principle on which the
seniority list was drawn. Merely saying now that
appellants were not aware of the seniority list or that
they ranked junior to the writ petitioners in that
seniority list, is not sufficient explanation to unsettle the
settled seniority positions. For more than twenty years,
the seniority list was accepted and acted upon.
Promotions had also been made on the basis of the
seniority list. The appellants have failed to give cogent
reasons for not assailing the seniority list within a
reasonable period. The redrawal of seniority list after
more than twenty years would not just affect a person
or two but the seniority positions of more than 45
persons would be upset. The settled seniority position
could not be unsettled.
In
R.S. Makashi & others vs. I.M.
Menon & others
, (1982) 1 SCC 379, writ petition was
filed eight years after circulation of seniority list
challenging the principles on which it was drawn. The
Court held that belated petitions challenging the
principles of seniority was not maintainable.

Malcom Lawrence Cecil D'Souza vs. Union of
India & others
, (1976) 1 SCC 599, holds that it is
essential that anyone who feels aggrieved with an
administrative decision affecting one's seniority should
2024:HHC:12276

act with due diligence and promptitude and not sleep
over the matter. Raking up old matters like seniority
after a long time is likely to result in administrative
complications and difficulties. It would, therefore,
appear to be in the interest of smoothness and
efficiency of service that such matters should be given a
quietus after lapse of some time.

K.A. Abdul Majeed vs. State of Kerala & others
,
(2001) 6 SCC 292 holds that after a long lapse of time
the question of initial appointment could not be
reopened at the instance of the private respondents and
that too for altering his seniority.

Shiba Shankar Mohapatra & others vs. State of
Orissa & others
, (2010) 12 SCC 471, has held as under:

"30. Thus, in view of the above, the settled legal
proposition that emerges is that once the seniority
had been fixed and it remains in existence for a
reasonable period, any challenge to the same
should not be entertained.
In [
K.R. Mudgal &
others vs. R.P. Singh & others
, (1986) 4 SCC 531],
this Court has
laid down, in
crystal clear words
that a seniority list which remains in existence for
3 to 4 years unchallenged, should not be
disturbed. Thus, 3 - 4 years is a reasonable
period for challenging the seniority and in case
someone agitates the issue of seniority beyond
this period, he has to explain the delay and
laches in approaching the adjudicatory forum, by
furnishing satisfactory explanation."

It will also be appropriate to take note of the

Division Bench decision of this Court rendered in Devinder

Dutt Sharma Versus State of H.P. & Others 4. The

petitioner therein was Joint Director (Health). His seniority

as Block Medical Officer, Chief Medical Officer, Deputy

Director (Health) and Additional Director (Health) was

sought to be reviewed by the private respondent (therein) in
CWP No.8185 of 2022, decided on 02.11.2023.
2024:HHC:12276

his representation. The respondents therein justified their

action of rectifying the seniority list by submitting that it

was in their competence to rectify the errors in the seniority

list, which crept up as the inter-se merit of the eligible

incumbents was not considered appropriately by the DPC.

The Court took strong exception to the action of the

respondents in violating the rules of natural justice in not

hearing the petitioner before passing the adverse order

against him. While allowing the writ petition, the Court

inter alia observed as under on the unsettling of long settled

seniority position and violation of principles of natural

justice:-

"14. From the aforesaid facts and attending circumstances,
it is clearly evident that the petitioner was initially
appointed as a Medical Officer way back in the year
1992. The final seniority list of Medical Officers as it
stood on 30.03.2000 was issued on 05.03.2001.
Thereafter, the petitioner was promoted as a Block
Medical Officer on 08.11.2010 and the seniority list of
Block Medical Officer was circulated on 25.07.2013. In
the same, the petitioner was senior to Dr. Keshav Ram,
Dr. Harsharan Kaur and Dr. Ghanshyam Upadhaya.
The same was never challenged or assailed by the
aforesaid three individuals subsequent thereto
promotions were effected to the post of Chief Medical
Officer and the petitioner was promoted to the post of
Chief Medical Officer on 27.12.2016 w.e.f. 24.05.2016.
Herein again a seniority list was circulated on
08.11.2017. In the said list again, Dr. Keshav Ram,
Dr. Harsharan Kaur and Dr. Ghanshyam Upadhaya
were junior to the petitioner. The same was never
assailed by the aforesaid three individuals.

15. It is only when a representation is filed on 23.2.2019 by
Dr. Keshav Ram that a review DPC is held on
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20.02.2020. In pursuance to the aforesaid review DPC
held on 20.02.2020, vide Notification dated 11.03.2020,
the recommendations made for promoting the petitioner
to the post of Block Medical Officer, in the panel for the
year 2010, was altered. As has already been stated
supra, the seniority list pertaining to Block Medical
Officers was circulated vide memo dated 25.07.2013.
No objection qua the same were ever filed by the
aforesaid three individuals namely Dr. Keshav Ram,
Dr. Harsharan Kaur and Dr. Ghanshyam Upadhaya.
Hence, to lay a challenge to the same in the year 2019
and to get the same reviewed in the year 2020 is
patently illegal as the same has not been done within
the prescribed period i.e. 3 to 4 years as
laid down in

the aforesaid authoritative pronouncement of the Apex
Court as relied upon by the petitioner.

16. Besides the aforesaid, once a representation laying
challenge to the seniority assigned to the petitioner had
been filed by Dr. Keshav Ram on 23.02.2019. A copy of
the same should have been forwarded to the petitioner
for his response. The same was essential in order to
comply with the Rules of natural justice, as the allowing
of the aforesaid representation was to have serious civil
consequences on the petitioner. Rather than following
the aforesaid procedure, the respondents-authority held
a review DPC made alterations in the settled seniority of
Block Medical Officer. Thereafter, held a review DPC on
03.12.2021, whereby the date of promotion of the
petitioner to the post of Chief Medical Officer was
changed from 24.05.2016 to 09.01.2017 and further a
recommendation to withdraw promotion of the petitioner
to the post of Joint Director had also been taken.

19. For the aforesaid reasons, the impugned Notification
dated 28th December, 2021 is quashed in so far as it
pertains to the petitioner. The respondents are directed
to restore the seniority of the petitioner prior to the DPCs
conducted on 20.02.2020 and 13.12.2021 with all
consequential benefits."

4(ii). Reverting to facts of the case, petitioner and

respondent No.3 both were posted as Assistant Professors

(OBG) in Dr. RPGMC Tanda in the year 2009 or in other

words, they were serving as Assistant Professors in the
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same specialty and in the same college. Petitioner was

appointed as Assistant Professor directly on 30.07.2009,

whereas respondent No.3 was promoted as such on

26.11.2009. It is not in dispute that from day one of his

appointment as Assistant Professor, the petitioner has been

enjoying higher rank and status than respondent No.3, who

joined the department as Assistant Professor on

26.11.2009. It cannot be expected that respondent No.3

was not aware that the petitioner had been ranked and

considered higher in seniority than him, even if it is

presumed that tentative seniority list of Assistant

Professors issued vide office memorandum dated

09.03.2015 was not circulated to him, as claimed by him. It

is a matter of record that the petitioner was promoted as

Associate Professor on 23.05.2015. At the relevant time,

respondent No.3 was serving as Assistant Professor.

Respondent No.3 obviously was aware of the fact that the

petitioner was enjoying higher rank in seniority over him

and that is how the petitioner got promoted as Associate

Professor on 23.05.2015. The petitioner was further

promoted as Professor on 30.12.2019. Respondent No.3, at

that time, was still serving as Assistant Professor. The facts

pleaded that respondent No.3 was not aware about
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petitioner's higher seniority position or that the tentative

seniority list had not been circulated to him, are only

arguments of desperation. In the facts of the case, when

both the petitioner and respondent No.3 were serving in the

same department and in the same college, it has to be

presumed that respondent No.3 was aware of petitioner's

higher rank in seniority over respondent No.3. Therefore,

the factual contention raised that the seniority/higher rank

assigned to the petitioner over respondent No.3 w.e.f. the

year 2009 was not to the knowledge of respondent No.3

only on the ground that the tentative seniority list dated

09.03.2015 was not to his knowledge, is rejected.

4(iii). It is also not in dispute that respondent No.3

never objected to the higher seniority position/rank/status

given to the petitioner as Assistant Professor (OBG) in

Dr. RPGMC Tanda w.e.f. the year 2009. He accepted the

petitioner as a higher ranking Doctor over him. Respondent

No.3 did not object to the promotion of the petitioner as

Associate Professor on 23.05.2015. Assuming for the sake

of argument that respondent No.3 was not aware about the

tentative seniority list dated 09.03.2015, in which the

petitioner had been placed at higher pedestal than

respondent No.3, then also, in case respondent No.3 had
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any grievance against the higher position/seniority of the

petitioner, it was for him to object to petitioner's promotion

as Associate Professor on 23.05.2015, which he did not do.

Respondent No.3 acquiesced in the promotion of the

petitioner to the post of Associate Professor. Not only that,

petitioner was further promoted as Professor on

30.12.2019. It is not the case of respondent No.3 that he

ever objected to the promotion of the petitioner as Associate

Professor or Professor at any point of time whatsoever.

In view of above paras 4(i) to 4(iii), it has to be

held that the seniority claim of respondent No.3 over the

petitioner suffers from unexplained delay and laches. It has

to be construed that respondent No.3 had acquiesced in the

higher seniority position assigned to the petitioner. He

cannot be permitted to open these issues at this belated

stage.

4(iv). Respondents No.1 and 2 while issuing impugned

order, ordered upsetting the long settled seniority, which

the petitioner enjoyed over respondent No.3 and also

ordered for holding review DPC for withdrawing petitioner's

promotion as Associate Professor on 23.05.2015 & as

Professor on 30.12.2019. Petitioner's civil rights were under

consideration and were adversely affected by respondent
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No.1 under the impugned order. Yet respondent No.1 did

not care to follow principles of natural justice. No

opportunity was given to petitioner to place his case before

issuing the impugned order.

It is more than settled that there has to be an

element of repose and a stale claim more particularly to the

one related to seniority & promotion cannot be resuscitated.

As regards the service matters, more particularly pertaining

to seniority and promotions, the delay is to be strictly

construed or else it would amount to unsettling the settled

matters after a lapse of time. Seniority is a civil right, which

has an important and vital role to play in one's service

career. Future promotion of a government servant depends

either on strict seniority or on the basis of seniority-cum-

merit or merit-cum-seniority. Seniority once settled is

decisive in the upward march in one's chosen work or

calling and gives certainty, assurance and boosts the

morale to do quality work. It instills confidence, spreads

harmony and commands respect among colleagues, which

is paramount factor for good and round administration. If

settled seniority is unsettled, it may generate bitterness,

resentment, hostility among the government servants
2024:HHC:12276

[Refer: Suresh Kapoor and others Versus State of H.P. and

others5].

4(v). The ratio of the decision rendered in Ajay Kumar

Shukla's2 case, relied upon by learned counsel for

respondent No.3, will not be applicable to the facts of the

instant case. In the aforesaid case, the seniority list in

question was held to have been prepared in contravention

to the Recruitment & Promotion Rules. Hon'ble Apex Court

held that the appointing authority would be bound by the

Statutory Rules and any violation in this regard to the

Statutory Rules would vitiate the seniority list. The same

would be arbitrary, de hors the Rules and in conflict with

Articles 14

& 16
of the Constitution. The only exception to

above would be where there is unreasonable delay, which is

unexplained.

The claim of respondent No.3 of higher seniority

position over the petitioner is not based upon the Statutory

Rules, but is based upon the instructions contained in

Chapter 13 of the Handbook on Personnel Matters, Vol-I,

Second Edition, issued by the Government of Himachal

Pradesh. Further, unreasonable delay on part of respondent

No.3 in questioning petitioner's seniority is absolutely
CWP No.1218 of 2021, decided on 01.12.2022
2024:HHC:12276

unexplained. Respondent No.3, as noticed above, has been

throughout aware of the higher seniority and status enjoyed

by the petitioner over him ever since the year 2009. He

cannot claim ignorance of petitioner's higher seniority

position merely by alleging that seniority list of Assistant

Professors prepared on 09.03.2015 was not circulated to

him. Petitioner and respondent No.3 had been working as

Assistant Professors in the same department and in the

same college. Learned counsel for respondent No.3 fairly

conceded during hearing that petitioner did enjoy higher

status in the department than respondent No.3 as

Assistant Professor with effect from the year 2009 even

though seniority list of Assistant Professors was issued on

09.03.2015, reflecting petitioner as senior to respondent

No.3. Petitioner was promoted as Associate Professor on

23.05.2015 and Professor on 30.12.2019, while respondent

No.3 was still serving as Assistant Professor. Respondent

No.3 raised no demur or protest at any point of time prior

to 08.03.2021 against higher seniority position and

promotions given to the petitioner.

Howsoever strong an employee's case on merits

against seniority position may be, he is required to lay it

out in open at the relevant time-within reasonable period.
2024:HHC:12276

Seniority dispute is not 'Snakes & Ladders' game, where an

official occupying a high position can be brought down to

ground level by mere roll of dice at any time at the desire of

the other official occupying a lower position.

5. In view of the above discussion, I find merit in

the instant petition. The same is accordingly allowed.

Impugned order dated 03.05.2023 (Annexure P-10) is

quashed and set aside. Pending miscellaneous

application(s), if any, also stand disposed of.

Jyotsna Rewal Dua
November 19, 2024 Judge
Mukesh