Himachal Pradesh High Court

Vinay Modi And Others vs State Of H.P. And Others on 4 October, 2024

2024:HHC:9577

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWPOA No.1224 of 2019 a/w
CWPOA No.1195 of 2019 and
CWPOA No.1386 of 2019
Reserved on: 06.09.2024
Decided on: 04.10.2024
__________________________________________________________

1. CWPOA No. 1224 of 2019
Vinay Modi and others ...Petitioners
Versus
State of H.P. and others ...Respondents

2. CWPOA No.1195 of 2019
Arun Kumar and others ...Petitioners
Versus
State of H.P. and others ...Respondents

3. CWPOA No. 1386 of 2019
Vinay Modi and others ...Petitioners
Versus
State of H.P. and others ...Respondents
__________________________________________________________
Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge
1 Whether approved for reporting? Yes

______________________________________________________
For the petitioner(s) : Mr. Vijay Kumar Arora, Advocate.
For the respondents: Mr.Anup Rattan, Advocate General,
with Mr. Pranay Pratap Singh,
Additional Advocate General, for the
respondents/State.

Mr. Sanjeev K. Suri, Advocate, for
respondents No. 15 and 16.

Satyen Vaidya, Judge

All these petitions are being decided by a common

judgment as the questions of facts and law involved are
Whether reporters of Local Papers may be allowed to see the judgment?

2 2024:HHC:9577

identical.

2. In the State of Himachal Pradesh, Tehsildari

Service is regulated by the Himachal Pradesh Tehsildari

Service Rules, 1973 (for short, "Tehsildari Rules"). Rule 7 (1)

of the ibid rules provide as under:

"7(1) Recruitment to the service shall be
made in the following manner:-

(a) 50% by selection of Naib Tehsildars who have four
years continuous substantive/ officiating service in
the grade;

(b) 30% from Class 'A' candidate; and

(c) 20% from Class 'B' candidate."

3. The Class 'A' candidates are those who are

selected by way of direct recruitment on the basis of an

examination and a viva-voce test on the same pattern as

may be prescribed for recruitment to the Himachal

Administrative Services. The direct recruits are

recommended by the Public Service Commission on the

receipt of requisition from Financial Commissioner. The

direct recruits are then accepted by the Financial

Commissioner as Class 'A' candidates in the year in which

they are recommended by the Commission. Thereafter one

year training; service as Naib Tehsildar for another one year
3 2024:HHC:9577

and passing of departmental examination within two years is

required for declaration by the Financial Commissioner of

candidate as qualified for appointment to the post of

Tehsildar.

4. The petitioners, in CWPOA 1224 of 2019 and

CWPOA 1386 of 2019 were Class 'A' Tehsildars. They were

accepted as Class 'A' Tehsildars on 26.12.1997 and

16.01.1998 respectively.

5. Similarly, the Naib Tehsildari Service in the state

is regulated by the Himachal Pradesh Naib Tehsildars

Service Rules, 1973. As per these rules, the posts of Naib

Tehsildars are also filled from three categories, directly

through competitive examination i.e. "A" class candidates;

from amongst certain categories of ministerial staff i.e. "B"

class and by promotion of Kanungo as per rota and quota

laid down in Himachal Pradesh Naib Tehsildars Service

Rules, 1973 and the procedure of recruitment is same as in

the case of Tehsildars.

6. The petitioners in CWPOA 1195 of 2019 were the

"A" Class accepted Naib Tehsildar candidates in 1983.

4 2024:HHC:9577

7. Respondent No.1 vide notification dated

7.10.1998 regularized the ad-hoc promotions of 41 Naib

Tehsildars to the post of Tehsildar (Class-1 Gazetted) in

relaxation of rule 16 (ii) of Tehsildari Rules with immediate

effect. A tentative seniority list of Tehsildars as it stood on

31.12.1998 was circulated on 25.2.1999. In the said

tentative seniority list, the placement of petitioners was

above the respondents in CWPOA No. 1224 of 2019 and as

per said petitioners, for such reasons, they had not raised

any objection with respect to said tentative seniority list. The

petitioners in CWPOA 1195 of 2019 had, however, objected

to the issuance of notification dated 7.10.1998 and tentative

seniority list dated 25.2.1999.

8. The final seniority list was issued on 1.6.1999

showing seniority position as on 31.12.1996. In the said

final seniority list, names of 41 Tehsildars regularized vide

notification dated 7.10.1998 also found mention. As per

respondent No.1, ad-hoc Tehsildars whose ad-hoc

promotions followed without break and regularization were

regularized and adjusted by treating them regular from the
5 2024:HHC:9577

date, posts in the promotion quota were available to their

share.

9. The petitioners in CWPOA 1224 of 2019 and

CWPOA 1195 of 2019 represented against the final seniority

list dated 1.6.1999. Having failed to receive any response to

their representation, petitioners preferred Original

Applications before the erstwhile H.P. Administrative

Tribunal, which later came to be transferred to this Court

and are the petitions being decided hereby as CWPOA No.

1224 of 2019 and CWPOA 1195 of 2019.

10. The regularization order dated 7.10.1998 and

final seniority list of Tehsildars dated 1.6.1999 has been

assailed not only by the petitioners in CWPOA No. 1224 of

2019 but by the beneficiaries of the regularization

notification dated 7.10.1998 by way of CWPOA 1195 of

2019. The challenge in CWPOA 1224 of 2019 is on the

grounds that the regularization of ad-hoc Tehsildars was

notified w.e.f. 7.10.1998 and hence they could not be

assigned seniority from anterior date and also that since the

ad-hoc promotions of Naib Tehsildars to the post of

Tehsildars were dehors the relevant service rules the period
6 2024:HHC:9577

for which they officiated as such could not be considered for

any purpose whatsoever. In CWPOA 1195 of 2019 challenge

has been laid on the premise that the seniority position of

the promotee Tehsildars regularized vide notification dated

7.10.1998 was not correctly shown in the seniority list dated

1.6.1999. The grounds as raised in CWPOA No.1195 of 2019

can be summed up as under:-

(i) The cadre of Naib Tehsildars being divisional
level cadre, their seniority lists were prepared
and maintained by the respective Divisional
Commissioners and there was no uniformity in
application of Naib Tehsildari Rules for the
purpose of preparation of seniority lists in
different divisions.

(ii) The integrated seniority list of Naib Tehsildar
was required to be prepared for the purpose of
consideration for selection to the post of
Tehsildar, but this exercise was completely
missing.

(iii) The seniority of Naib Tehsildars as per Rule 20 of
Naib Tehsildari Rules, is to be counted from the
date of substantive appointment, which principle
has also been violated.

(iv) The respondents could not be given seniority as
Naib Tehsildars from the date of their

appointment especially when ad hoc appointment
had been made against slots fixed for "A" and
7 2024:HHC:9577

"B" Class. The private respondents were to be
regularized from the dates/years when posts
meant for their quota as per roster became
available for regularization, whereas, they were
illegally regularized from the date of ad hoc
appointment. Respondent No.1 had constantly
defined H.P. Tehsildari Service Rules.

11. The respondents vide their separate replies, have

contested the claim of the petitioners and have supported

the issuance of regularization notification dated 7.10.1998

and the seniority list dated 01.06.1999.

12. During the pendency of CWPOAs No. 1224 of

2019 and 1195 of 2019 respondent No.1 once again

regularized the services of 44 more ad-hoc Tehsildars vide

notification dated 1.3.2006. In addition to regularization of

ad-hoc Tehsildars, some of the Naib Tehsildars were also

promoted as Tehsildars.

13. Thereafter, a tentative seniority list of Tehsildars

as it stood on 1.3.2006 was issued by respondent No.1 on

6.7.2006. In the said tentative seniority list, petitioners in

CWPOA 1224 of 2019 were shown at serial Nos.4, 5, 6 and 7

respectively. The petitioners filed representations against

said tentative seniority list. Respondent No.1 vide memo
8 2024:HHC:9577

dated 4.10.2007 issued final seniority list of Tehsildars as it

stood on 1.3.2006 maintaining the seniority position of

petitioners at serial Nos.4, 5, 6 and 7 on the basis of their

dates of acceptance as Class 'A' Tehsildars. The said

seniority list was implemented and the petitioners were

further promoted to the posts of District Revenue Officers on

ad-hoc basis vide notification dated 6.10.2007.

14. Respondent No.1 issued yet another seniority list

on 7.10.2008 of Tehsildars as it stood on 11.9.2008. The

reasons assigned for circulation of tentative seniority list

dated 7.10.2008 was that in the meanwhile the seniority

lists of Naib Tehsildars by respective Divisional

Commissioners had been rectified in consonance with the

instructions of the Government dated 21.11.2006 and the

review DPC meeting had been held on 19, 23 and 28.8.2008.

The tentative seniority list on 7.10.2008 was circulated in

continuation to the earlier seniority list issued on 1.6.1999

and in supersession of subsequent final seniority list of

Tehsildars issued on 4.10.2007.

15. In seniority list dated 7.10.2008, the petitioners

were placed below the private respondents in CWPOA No.
9 2024:HHC:9577

1386 of 2019. Against the treatment, which according to

petitioners was arbitrary and against the rules,

representation was filed but without any result. Final

seniority list was issued on 24.12.2008 showing the

seniority position as on 11.9.2008.

16. The petitioners in CWPOA 1195 of 2019 appears

to have raised no objection against the regularisation

notification dated 1.3.2006, tentative seniority list dated

7.10.2008 and final seniority list dated 24.12.2008.

17. This seniority list has been assailed by the

petitioners by way of CWPOA No. 1386 of 2019. The

grievance raised by the said petitioners is that the gradation

of regularized ad-hoc Tehsildars by respondent No.1 vide

notification dated 11.9.2008 was contrary to Rules. They

were given promotions to the posts of Tehsildar from the

year 1990 onwards. Consequently, in seniority list dated

24.12.2008, petitioners have been wrongly downgraded.

According to the petitioners, the seniority in the cadre is

required to be given from the date the incumbents were

appointed on regular service. Respondents No.2 to 28 in

CWPOA No. 1386 of 2019 were wrongly given benefit of
10 2024:HHC:9577

ad-hoc service by placing them above the petitioners in the

seniority. The said petitioners have alleged that they were

directly and regularly appointed to the cadre of Tehsildar

Class 'A'. Respondents No. 2 to 28 are promotee Tehsildars

from Naib-Tehsildars category, therefore, they are to be given

seniority from the dates they were declared as qualified by

virtue of passing the examination and acceptance by the

competent authority. It has also been alleged that the

instructions dated 30.6.2001 and 21.11.2006 as also the

agenda for review DPC, were wrongly given precedence over

the rules.

18. As per petitioners in CWPOA 1386 of 2019, slots

against which the respondents have been promoted from

back dates were not available in the share of their quota.

These slots had already been exhausted by the persons of

the cadre although this was not reflected in the minutes

placed before the review Departmental Promotion

Committee. Accordingly, the impugned seniority is alleged to

be not based on true facts.

19. Another grievance of the said petitioners is that

respondent No.1 wrongly gave benefit to respondents No. 2
11 2024:HHC:9577

to 28 by promoting them on regular basis to the posts of

Tehsildars right from the year 1990 against the vacancies in

the cadre taking into account ex-cadre posts and each and

every vacancy created during 1990 to 2006 by virtue of

retirement or promotion of Tehsildars from Naib Tehsildars

category. The vacancies caused due to the promotion,

retirement or demise of Tehsildars promoted from Naib

Tehsildars were to be filled in the ratio of 50%, 30% and 20%

from all the three categories as per Rule 7 of Tehsildari

Rules and not from the category of Naib Tehsildars promotee

only.

20. It is also the concern of said petitioners that

though vide notification dated 1.3.2006, the ad-hoc

Tehsildars were regularized with immediate effect, but

seniority assigned to them makes them regular from the

dates when they were not even eligible to hold the post.

21. On the other hand, to support and justify its acts

of promoting the Naib-Tehsildars as Tehsildars on ad-hoc

basis from time to time, respondent No.1 has taken a stand

that since the post of Tehsildar is a functional post, it

cannot be kept vacant.

12 2024:HHC:9577

22. As per respondent No.1, Rule 17 of Tehsildari

Rules provides 20-point roster to be followed for assigning

inter-se seniority to the three feeder categories i.e. A Class, B

Class and promotees from Naib Tehsildars in respect of a

particular year. The services of ad-hoc promotees were

regularized against vacancies arising in their own quota i.e.

50% by holding regular DPC. Reliance for such purpose has

been placed on the procedure prescribed in the Department

of Personnel Instructions dated 30.6.2001.

23. It has also been submitted that Class 'A' and

Class 'B' candidates in the first instance are accepted as

candidates for the post of Tehsildars. After undergoing

training under Rule 14 of Tehsildari Rules, they are declared

as qualified candidates under Rule 15 for appointment to

the cadre of Tehsildars. In this manner, the quota rule in

respect of appointments of Class 'A' and Class 'B' candidates

is said to have been complied with on the acceptance of such

candidates, even if their formal appointments are made later

on after they are declared qualified for appointment under

Rule 15. In support of decision to make the candidates in

Class 'A' and Class 'B' entitled to seniority from the date of
13 2024:HHC:9577

acceptance, reliance has also been placed on a judgment

passed by erstwhile H.P. Administrative Tribunal in TA No.

519 of 1986. On the strength of above, it has been

contended that by same analogy, the seniority of Naib

Tehsildars is also to be considered from the date of

acceptance of Class 'A' and Class 'B' Naib Tehsildars in their

cadre.

24. Respondent No.1 has further submitted that while

regularizing the ad-hoc Tehsildars vide notification dated

7.10.1998, the regularization was done from such back

dates when the vacancies had arisen in the quota of

promotees. In this manner, 41 ad-hoc Tehsildars regularized

vide notification dated 7.10.1998, were shown in the

seniority list as it existed on 31.3.1996. As further

contended by respondent No.1, after September 1998, DPC

for regularization of ad-hoc Tehsildars was held in March,

2006. The tentative seniority list was issued on 6.7.2006,

followed by final seniority list on 4.10.2007. While framing

the seniority list, A & B Class appointees were assigned

seniority as per their dates of acceptance. The promotees

who were considered by the DPC as per consolidated
14 2024:HHC:9577

seniority list of Naib Tehsildars were accordingly placed as

per recommendations of DPC. The petitioners were

subsequently promoted as District Revenue Officers on ad

hoc basis on 6.10.2007. In the meanwhile, the seniority lists

of feeder category of Naib Tehsildars were re-drawn by the

Divisional Commissioners Kangra, Mandi and Shimla during

the year 2007, which necessitated a review DPC for

reviewing the seniority list of Tehsildars. Accordingly, the

review DPC was convened in August, 2008; tentative

seniority list was issued on 7.10.2008 and final seniority list

after inviting objections was issued on 24.12.2008.

25. Respondent No.1 has maintained a categoric

stand that the seniority list dated 24.12.2008, was prepared

in accordance with law. The correct vacancy position was

worked out by the Department and placed before the DPC,

whereafter the seniority list was issued on 24.12.2008. The

promotee Naib Tehsildars were assigned the seniority from

the dates when the posts were available in their quota. No

ex-cadre post had been taken into account while assigning

the seniority to the Naib Tehsildars. It has been pleaded that
15 2024:HHC:9577

the quota of 50% of the cadre post falling to the share of

Naib Tehsildars was not exceeded at any point of time.

26. Respondent No.1 also has taken a stand that the

petitioners having been promoted as District Revenue

Officers on ad hoc basis, were not proposed to be reverted.

27. I have heard learned counsel for the parties and

have also gone through the records of the case carefully.

28. CWPOA No. 1224 of 2019 is filed by four

petitioners, whereas CWPOA No. 1386 of 2019 is filed by

three petitioners only (petitioners No. 1 to 3 in CWPOA No.

1224 of 2019), the 4th petitioner Ms. Sushma in CWPOA No.

1224 of 2019 has not joined the other petitioners in CWPOA

No. 1386 of 2019.

29. The Tehsildars promoted on ad-hoc basis from

time to time, were ordered to be regularized vide notification

dated 7.10.1998 issued by the 1st respondent. According to

said notification, the regularization was ordered from

immediate effect and by relaxing Rule 16 (ii) of Tehsildari

Rules. A tentative seniority list showing the seniority

position as on 31.3.1998 was circulated vide office

memorandum dated 26.02.1999. The petitioners were placed
16 2024:HHC:9577

above the Tehsildars regularized vide notification dated

7.10.1998, therefore, the petitioners did not raise any

objection. However, respondent No.1 issued final seniority

list dated 1.6.1999 showing seniority position as on

31.12.1996, which included the names of Tehsildars

regularized w.e.f. 7.10.1998. It was specifically mentioned in

the forwarding memorandum dated 1.6.1999 that the ad-hoc

Tehsildars whose promotions were followed without break

and regularization had suitably been adjusted by treating

them regular from the date posts in the promotion quota

were available to their share.

30. The petitioners in CWPOA No. 1224 of 2019

assailed the above noticed decision of respondent No.1 by

seeking relief to the following effect:-

"(i) Declare the act of the respondent-State whereby
vide the impugned final seniority list dated 1.6.1999,
it has regularized the promotions of the private
respondents 2 to 42 to the post of Tehsildar from Naib
Tehsildar with retrospective effect and thus made
applicants junior to them, ignoring the fact that the
applicants were directly recruited to the said post prior
to order of regularization of ad hoc promotion of private
respondents as Tehsildars with immediate effect vide
order dated 7.10.1998, and further declare the act of
17 2024:HHC:9577

the respondents of omitting the name of the applicants
from the seniority list by preparing it to reflect the
position as on 31.12.1996 and not as on 31.12.1998
and taking this decision at the back of the applicants
without any notice to the applicants in this regard as
arbitrary, discriminatory against the principles of
natural justice, defeats the legitimate expectation of the
applicants and is hence violative of
Article 14
and
of
the Constitution of India and quash seniority list dated
1.6.1999 qua respondents 2 to 42."

31. Respondent No.1 vide notification dated 1.3.2006

yet again ordered regularization of services of ad hoc

Tehsildars besides promotion of Naib Tehsildars to the post

of Tehsildar (Class-I Gazetted) on regular basis with

immediate effect. On 6.7.2006, a tentative seniority list of

substantive Tehsildars as it stood on 1.3.2006 was

circulated. The final seniority list of Tehsildars as it stood on

1.3.2006 was circulated on 4.10.2007 reflecting the same

position as in the tentative seniority list dated 6.7.2006. The

petitioners accepted the said seniority list. The fact of the

matter is that petitioners were promoted as District Revenue

Officers on ad-hoc basis vide notification dated 6.10.2007.

32. Respondent No.1 issued another tentative

seniority list on 7.10.2008 of Tehsildars as it stood on
18 2024:HHC:9577

11.9.2008. In the said tentative seniority list, the seniority

position of petitioners was downgraded and they were placed

after the private respondents in CWPOA No. 1386 of 2019.

The petitioners unsuccessfully objected against the said

tentative seniority list dated 7.10.2008. Lastly, final seniority

list of Tehsildars as it stood on 11.9.2008 was circulated on

24.12.2008 maintaining the same seniority position as

shown in tentative seniority list dated 7.10.2008.

33. The petitioners in CWPOA No. 1386 of 2019 then

came up seeking following reliefs:

"(i) That the writ in the nature of certiorari may kindly
be issued for quashing the final seniority list
(Annexure P-11) issued by respondent No.1 on
24.12.2008 whereby the petitioners have been
illegally downgraded. Similarly, the impugned
notification dated 11.9.2008 (Annexure P-12),
whereby the respondents No. 2 to 28 have been
given regular promotions from the year 1990
onwards against the provisions of Rules may be
quashed and set-aside.

(ii) That the writ or order may kindly be issued
directing the respondent No.1 to reassign the
seniority to the petitioners at appropriate places
according to the date of their appointment."

19 2024:HHC:9577

34. The memorandum dated 7.10.2008 whereby the

tentative seniority list of Tehsildars as it stood on 11.9.2008

was circulated, recorded that the said list was circulated in

continuation to earlier final seniority list of Tehsildars dated

1.6.1999 and in supersession of subsequent final seniority

list dated 4.10.2007. In other words the final seniority list

dated 1.6.1999 showing the seniority position as on

31.12.1996 was kept in continuation while preparing the

tentative seniority list of Tehsildars as it stood on 11.9.2008

vide memorandum dated 7.10.2008. The seniority list dated

4.10.2007 showing the seniority position of Tehsildars as on

1.3.2006 was superseded. Thus, the cause raised by the

petitioners in CWPOA No. 1224 of 2019 remained alive.

35. The grievance of the petitioners in CWPOA 1224 of

2019 and CWPOA 1386 of 2019 is that firstly the grant of

regular status as Tehsildars to the private respondents in

CWPOA No. 1224 of 2019 vide memorandum dated 1.6.1999

and thereafter the same treatment to the Tehsildars whose

services were regularized vide notification dated 1.3.2006

was against the provisions of Tehsildari rules. In CWPOA
20 2024:HHC:9577

1195/19 a similar grievance was raised alleging violation of

Naib Tehsildari rules.

36. Noticeably, in the first place the petitioners in any

of the above cases have not laid any challenge to the ad-hoc

promotions of Naib Tehsildars to the post of Tehsildars, as

ordered by the 1st respondent, from time to time and in the

second the regularization of ad-hoc Tehsildars ordered by

respondent No.1 firstly vide notification dated 7.10.1998 and

thereafter vide notification dated 1.3.2006 have not been

challenged as such.

37. The petitioners in all the cases have shown their

grievance to the placements in seniority lists prepared and

circulated post the aforenoted regularisation orders dated

7.10.1998 and 1.3.2006. They have taken exception to the

retrospectivity in conferment of regular status or in

alternative grant of seniority from back dates to the private

respondents in all the petitions.

38. According to petitioners, both the notifications

dated 7.10.1998 and 1.3.2006 were made effective from the

date of their issuance respectively and thus, the ad-hoc

Tehsildars whose services were regularized thereby could not
21 2024:HHC:9577

be allowed seniority positions from any prior when they were

not even born in the cadre. It is also contended that for

being appointed as regular Tehsildar, the requirements of

Tehsildari Rules were to be fulfilled and since the ad-hoc

Tehsildars regularized vide aforesaid notifications did not

fulfill such requirements, they could not be allowed the

benefit of regularization retrospectively or in alternative the

benefit of seniority from back date.

39. Respondent No.1 has taken a specific stand that

the regularized Tehsildars were given seniority from the date

of their officiation as ad-hoc Tehsildars subject to availability

of particular vacancy in their quota. It has also been

submitted that the petitioners have been considered from

the date of their acceptance as Tehsildars, which has not

been changed at any point of time. As per respondent No.1,

the post of Tehsildar being a functional post, could not be

kept vacant for long and for such reason ad-hoc promotions

were made from time to time. While fixing the seniority, the

dates on which the vacancies had occurred in the quota of

promotees were taken into consideration and accordingly,
22 2024:HHC:9577

the seniority was fixed from retrospective dates. To same

effect has been the stand taken by the private respondents.

40. In the backdrop of above noted diverse stands, an

issue with disputed facts has been posed before this Court

in exercise of writ jurisdiction. The petitioners have

maintained that the seniority positions assigned to

respondents as Tehsildars were from the dates when the

vacancies were not available to their quota and in CWPOA

1195/2019 it has also been alleged that the slots, by grant

of retrospective seniority were dehors the rule of rota-quota

prescribed in relevant service rules.

41. The petitioners in CWPOA 1224/2019 and

CWPOA 1386/2019 have not been able to discharge their

burden by placing on record unimpeachable material to

establish their allegations.

42. Though the petitioners in CWPOA 1195/19 have

tries to exemplify the instances of violation of rules including

rule of rota quota, but they have kept their challenge limited

against the regularisation notification dated 7.10.1998 and

consequent seniority list dated 1.6.1999, whereas much

water has flown thereafter more particularly another
23 2024:HHC:9577

regularisation of ad-hoc Tehsildars took place on 1.3.2006

followed by circulation of final seniority list dated

24.12.2008 on the basis of review DPC held after redrawal of

seniority lists of Naib Tehsildars and such subsequent

remained unchallenged by the said petitioners.

43. The petitioners have also not been able to

controvert the stand of respondent No.1 that the seniority

was assigned to the ad-hoc Tehsildars after their

regularization from the dates the slot in their own quota of

50% were available.

44. Thus, in absence of the discharge of necessary

burden by the petitioners to prove violation of relevant

service rules while granting seniority positions to the parties

vide seniority lists dated 1.6.1999 and 24.12.2008 and also

in absence of any impeccable material to establish their

contention, this court is unable to find any fault with the

administrative actions impugned by way of these petitions.

45. Another ground taken by respondent No.1 is that

the post of Naib Tehsildar is governed by its own service

rules known as 'Naib-Tehsildari Rules'. It is a divisional level

cadre. The seniority list of Naib Tehsildars is maintained by
24 2024:HHC:9577

respective Divisional Commissioners in each of the divisions

of Shimla, Mandi and Dharamshala. The Divisional

Commissioners had not applied uniform parameters for

maintaining the seniority lists of Naib Tehsildars in their

respective Divisions, therefore, there were several anomalies

in the consolidated seniority list of Naib Tehsildars prepared

for consideration of their promotion to the post of Tehsildar.

Various representations were pending before the competent

authority. The rectification in terms of rules were made and

the anomalies in consolidated seniority list of Naib

Tehsildars were removed which necessitated the holding of

review DPC and consequent issuance of the tentative

seniority list dated 7.10.2008 followed by final seniority list

dated 24.12.2008. Respondent No.1 has also submitted that

since the date of acceptance of petitioners as Tehsildars was

considered as relevant date for placing them in seniority list,

the same principle was applied in the case of Naib

Tehsildars also.

46. The petitioners have not been able to rebut above

factual position nor have they come up with any additional

material to challenge the process of redetermination of
25 2024:HHC:9577

seniority lists of Naib Tehsildars at divisional level or

consequent integrated seniority list of such cadre prepared

for promotion to the next higher cadre of Tehsildar.

47. The proposition that seniority can be fixed from

back date cannot be disputed in light of principles laid down

in
Direct Recruit Class II Engineers Officers Association Vs State

of Maharashtra
(1990) 2 SCC 715 (hereinafter referred to as

'Direct Recruits
case').

The relevant extract from
Direct

Recruits
case is reproduced hereunder:

"47. To sum up, we hold that:

(A) 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.

The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and made
as a stop-gap arrangement, the officiation in such post cannot
be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the
procedure
laid down by
the rules but the appointee continues in
the post uninterruptedly till the regularization of his service in
accordance with the rules, the period of officiating service will
be counted."

48.
In one of the numerous interpretations to the

principles enunciated in
Direct Recruits
Case Hon'ble

Supreme Court in
Santosh Kumar v. State of A.P.
(2003) 5 SCC 511

expounded as under:

26 2024:HHC:9577

10. A Constitution Bench of this Court in Direct Recruit Class II Engg.

Officers' Assn.
case (1990) 2 SCC 715 after considering various aspects
and earlier decisions, summed up the conclusions in para 47 of the
judgment. For our purpose paras (A) and (B) of the said paragraph are
relevant, which are extracted hereunder : (SCC pp. 744-45)
"47. To sum up, we hold that:

(A) 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.

The corollary of the above rule is that where the initial appointment is
only ad hoc and not according to rules and made as a stopgap
arrangement, the officiation in such post cannot be taken into account
for considering the seniority.

(B) If the initial appointment is not made by following the procedure

laid down by
the rules but the appointee continues in the post
uninterruptedly till the regularisation of his service in accordance with
the rules, the period of officiating service will be counted."

The respondent and others were appointed as Sub-Inspectors out of
seniority looking to the outstanding merit and record prior to the direct
recruits like the appellant. Their services were admittedly regularised
by relaxing the Service Rules in exercise of power available under Rule
47 of the General Rules. The appellant did not challenge the validity of
Rule 47 and no mala fides were established against the authorities in
exercise of powers of relaxation under the said Rule. The Tribunal has
recorded a finding that the Rule relating to the method of recruitment
was not relaxed but only the conditions which had to be fulfilled for the
purpose of promotion to the category of Sub-Inspector were relaxed;
this finding is not disturbed by the High Court; there was no relaxation
as to the basic qualification; the State Government regularised the
services of the respondent and others with retrospective effect from
the date they were temporarily appointed as Sub-Inspectors (OSSIs). It
is also not disputed that they continued in service uninterruptedly for
about 12-13 years till their services were regularised with retrospective
effect. This being the factual position it could not be said that the
corollary to para 47(A) of the aforementioned Constitution Bench
judgment applies to the facts of the present case. Once their services
were regularised it cannot be contended that their initial appointment
was only on ad hoc basis and not according to the rules and made as a
stop gap arrangement. On the other hand para 47(B) supports the case
of the respondent.

49. Hence, even the period of ad-hoc promotion can

be considered for the purposes of seniority provided the
27 2024:HHC:9577

same is followed by regularization and is in terms of relevant

service rules. The fact that the petitioners have not laid

attack to the regularization of respondents, as such,

impliedly the petitioners have not found any fault in the ad-

hoc promotions of the private respondents ordered by

respondent No.1 from time to time. The only evident

objection has been raised with reference to the relaxation

clause included in notification dated 7.10.1998, but later

when respondent No.1 has raised the plea that relaxation

was with respect to Rule 16 (iv) of Tehsildari Rules and not

Rules 16 (ii), the petitioners have not been able to further

controvert the same. Rule 16 (iv) deals with the requirement

of a Naib Tehsildar to work in tribal/hard area for three

years and it has not been disputed by the petitioners that

such a condition could not have been relaxed or was so

fundamental that the Naib Tehsildar could not have been

considered for promotion in absence thereof. No other

illegality, infirmity or irregularity has been pointed out by

the petitioners in the ad-hoc promotions of the private

respondents.

28 2024:HHC:9577

50. Learned counsel for petitioners in CWPOA 1224 of

2019 and 1386 of 2019 has placed reliance on judgments

passed by Supreme Court in the matter of Suraj Parkash

Gupta and others Vs State of J&K and others (2000) 7 SCC 561

and Union of India Vs Dharampal (2009) 4 SCC 170 to contend

that the power to relax rules is not absolute. In my

considered view the precedent so relied on behalf of

petitioners has no application in instant cases for the

reasons firstly that the Suraj Parkash Gupta (supra) was in the

context of specific requirement under J&K (CCA) Rules,

1956 and secondly as held above the relaxation of rule 16(iv)

of Tehsildari rules in the instant cases was neither proved to

be beyond the power of the government nor so fundamental

which could render the consideration of Naib Tehsildar for

selection to the post of Tehsildar void. Rather, para 69 of the

Suraj Parkash Gupta as reproduced hereafter supports the

case of respondents:

"69. Thus, there is overwhelming authority of this
Court to hold that ad hoc, stopgap service could be
regularised from an anterior date after consulting the
Service Commission from the date of vacancy in the
promotee quota, after considering fitness, eligibility,
suitability and ACRs. Therefore, the ad hoc/stopgap
29 2024:HHC:9577

service rendered by promotees beyond six months
and without the consent of the Public Service
Commission as per Regulation 4(d)(ii) cannot be
treated as non est. It can be regularised later after
consulting the Commission in respect of posts in the
promotion quota and subject to eligibility and
suitability based on ACRs, etc. Only the period
rendered outside the quota or the period rendered
within the quota when the promotee was not eligible
or found fit has to be excluded."

51. The reliance placed by petitioners on
R.K.

Mobisana Vs Kh. Themba Singh
(2008) 1 SCC 747, Union of India

Vs Dharampal (2009) 4 SCC 170 and Narayana Rao Vs Union of

India (2010) 9 JT 346 to contend that since the ad hoc

promotions of private respondents were dehors the rules

such service could not be considered for seniority purposes

also does not help their cause in view of what has been held

above in respect of failure of petitioners to prove violation of

any service rule while granting ad-hoc promotions to the

private respondents.

52. This Court was informed that the majority of

petitioners and private respondents have already retired. In

absence of petitioners pointing out instances where the

private respondents have been granted seniority from a date

when the vacancy was not existing in the quota of
30 2024:HHC:9577

promotees, this Court does not find any reason to show

interference in exercise of jurisdiction under
Article 226
of

the Constitution of India. Moreover, such an exercise will

amount to unsettling of long standing settled seniority

positions, which otherwise is impermissible. Reference can

be made to recent reiteration of said principle by Hon'ble

Supreme Court in
V. Vincent Velankanni Vs Union of India

and others
2024 INSC 748

53. As notices above, the petitioners in CWPOA

1195/2019 had already given up their chase half way by not

laying any challenge to subsequent regularisation of ad-hoc

Tehsildars on 1.3.2006 and consequent circulation of final

seniority list dated 24.12.2008, therefore, the reliefs prayed

by them have become infructuous.

54. In light of what has been discussed above all the

three petitions are dismissed with no order as to costs.

55. Pending miscellaneous application(s), if any, also

stand disposed of.

4th October, 2024 (Satyen Vaidya)
(GR) Judge