JUDGMENT Arun Kumar Goel, J.—Petitioner is aggrieved by the actions of the Respondent No. 1 whereby he has been placed below Ms. Indu Bhandari (hereinafter referred to as Respondent No. 2) in the seniority list dated 4-5-1987 circulated by the said Respondent as well as of his confirmation from a subsequent date to that of Respondent No. 2 and has farther prayed for quashing Annexures P-11,P-14 and P- 19 and thereafter re-drafting the final seniority list of Clerks and place him above Respondent No. 2. Petitioner has also prayed for quashing of the decision rejecting the representation of the petitioner on 5 4-1991 vide Annexure P-24. Petitioner has also prayed for declaring Rule 9-A (3) of the H. P. Vidhan Sabha Recruitment and Conditions of Service Rules, 1974 (hereinafter referred to as Rules of 1974), being ultra vires, illegal and un constitutional in so far a j this rule seeks to change the seniority position in the order of confirmation. 2. Brief facts giving rise to this case are that the petitioner was appointed as Clerk in I (.P. Vidhan Sabha in June, 1983 and he joined as such on 10-6-1983, according to him he successfully completed his probation under Rule 9 of Rules of 1974 as it was never extended though Respondent No. 1 had power to have extended it, Thus according to the petitioner his date of confirmation should have been 10-6-1985 and not 9-8-1985 as shown in Annexure PI. As a result of wrong placement of the petitioner, he was not given the seniority as Clerk from the due date, but was wrongly given the same from 13-7-1988 vide Annexure P-5. According to the petitioner in final seniority list as on 1-1-1984, Respondent No. 2 did not figure anywhere and in the subsequent seniority list as on 1-1-1985 circulated vide Annexure P-24 Respondent No. 2 is below the petitioner, Similar is the position of final seniority lists as on 1-1-1986 and 1-1-1987 circulated vide Annexures P-9 and P-10. However, in the final seniority list vide Annexure-P-ll as it stood on 1-1-1988 Respondent No. 2 was shown to be above the petitioner in the said list. However, in the final seniority list vide Annexure-P-ll as it stood on 1-1-1988 Respondent No. 2 was shown to be above the petitioner in the said list. Against this, the petitioner represented to Secretary of Respondent No. 1 through its representation Annexure P-12, Again in the seniority list circulated vide Annexure P-14 as on 1-1-1989, petitioner was shown below Respondent No. 2 when again he represented to Respondent No. 1 vide h: s representation. Annexure P-16. It appears that petitioner had been informed on 7-7-1988 by Respondent No. 1 regarding his application and on 19-4-1989 vide Annexure P-16 it was further informed that such applications were turned down. Petitioner was not satisfied with the order Annexure P-16, as such he filed an appeal for the restoration of seniority, to tie Secretary of Respondent No. 1 on 25-8-1989 vide Annexure P-17 and the same was not accepted as is evident from the communication Annexure P-18. As on 1-1-1990 another order was issued by Respondent No. 1 wherein again the petitioner was shown below Respondent No. 2 which action was again objected to by the petitioner vide Annexure P-20. While objecting vide Annexure P20f petitioner had referred to a decision of the Apex Court to which a reply was sent on behalf of Respondent No 1 that the petitioner should submit an authenticated copy of the decision of the Apex Court Here it may be appropriate to mention that inspite of clear reference io the judgment and its citation having been mentioned in Annexure P-20 an abnormal stance was taken by Respondent No 1 for reasons best known to it. When Respondent No. 1 sent Annexure P-21,we are constrained to observe in this behalf that it appears to have been issued without application of mind and without caring to examine this matter in its right perspective, 3. However, the petitioner was informed that his representation stands dismissed as r o action is possible since after consideration of all aspects of this mattei7 and in view of the already decided case, Against this the petitioner submitted an application to Respondent No. 1 vide Annexure P-23 wherein amongst other things, it was pointed out by the petitioner that he had been appointed on 10-6-1983, whereas Respondent No. 2 had been appointed on 5-1-1984, which clearly showed according to the petitioner that he was senior to the said respondent. In these circumstances he prayed to again look into the matter judiciously and to assign him the right place in seniority list This representation was made on 28-2-1991 (Annexure P-23), but it was again turned down by the Respondent No. 1 and it was con tended that the decision of the Supreme Court was in a case of rules under Article 309 of the Constitution of India and Rules of H. P. Vidhan Sabha Secretariat have been framed under Article 187(3) of the Constitution of India. As such decision is not applicable to H. P. Vidhan Sabha. 4. It is in the aforesaid background that the petitioner has filed the present writ petition. 5. It may be appropriate to point out in the context of this case that Respondent No. 2 has neither filed any reply nor has chosen to contest the claim of the petitioner made in the writ petition and she did not care to present herself when the case was taken up for final hearing 6. On the other hand the stand of the Respondent No. 1 is that the petitioner though appointed in June, 1983 was not found fit by the Departmental Promotion Committee and as for various lapses on his part was served with a memo by Respondent No. 1 vide Annexure Rl A perusal of Annexure R-l shows that show cause notice was given to him whereby he was called upon to submit his explanation within three days failing which his services would be dispensed with after giving a period of one months notice. It may be appropriate to mention here that Annexure R-l was issued after completion of period of probation which had expired on 10-6-1985, whereas this Annexure R-l was issued on 18-2-1986. It further appears that prior to this nothing adverse was conveyed whereby either services of the petitioner were dispensed with or his period of probation was extended in accordance with Rule 9 of Rules of 1974. Although respondent No. 1 had tried to justify his action in confirming the petitioner later to respondent No. !, and thereby showing him junior to the said respondent in the seniority lists issued from time to time. While doing so the date of confirmation had been taken to be the material date. 7. Although respondent No. 1 had tried to justify his action in confirming the petitioner later to respondent No. !, and thereby showing him junior to the said respondent in the seniority lists issued from time to time. While doing so the date of confirmation had been taken to be the material date. 7. During the course of hearing record relating to the case under hand was also produced by Shri K. D, Sood for perusal of this Court. 8. Shri Keshav Dutt Shreedhar, learned Counsel for the petitioner has vehemently argued that admitted position as well as the facts and circumstances of this case are that before 10 6-1985 the probation period of the petitioner was not extended although this could be done in accordance with Rules of 1974 by respondent No 1 and he further pointed out that the said respondent cannot derive any benefit out of Annexure R-l on two counts : (a) no action was taken thereon ; and (b) it was issued after the completion of probation period which accordingly came to an end on 10-6-J 985, Thus according to the learned Counsel for the petitioner his client would be deemed to have been confirmed with effect from 10-6-1985, and is entitled to all consequential benefits including grant of senior scale. In this context Mr, Shreedhar again pointed out that except Annexure R-l nothing was ever conveyed by the respondent No. 1 to the effect that he is not found fit for confirmation This too was issued after the petitioner stood confirmed with effect from 10-6-1985. In this view of the matter, Mr. Shreedhar pointed out that respondent No. 2 could not be confirmed earlier to the petitioner as has been legally done by respondent No. 1. It was also submitted on behalf of the petitioner that it is a case of simple confirmation without either the services of the petitioner having been dispensed with during the probation and/or the probation period having been extended which can only be extended for one year. 9. In the present case, it is not in dispute that the petitioner was appointed against a regular vacancy as well as in accordance with rules. 9. In the present case, it is not in dispute that the petitioner was appointed against a regular vacancy as well as in accordance with rules. Under the Rules of 1974 the petitioner was entitled to be confirmed after completion of two years probation period and since it had not been extended as such in no case respondent No 2 could be placed above the petitioner simply on the plea raised by respondent No. 1 that he had been confirmed from 7-8-1986, Thus the non-confirmation of the petitioner with effect from 10 6-1985 is not only illegal but is otherwise contrary to rules and is also arbitrary and discriminatory, thus being violative of Articles 14 and 16 of the Constitution of India Even otherwise the petitioner could not have been denied the benefit of confirmation from 10-6*1985 to which he was legally entitled to for the reasons set out here-in above. In taking this view reference may be usefully made in case The State of Punjab v Dharam Singh, AIR 1968 Supreme Court 1210 wherein it has been held that probationer while officiating in permanent post after expiry of probationary period and no order of confirmation was passed, he must be deemed to have been confirmed in that post In such situation his removal from service without following the procedure prescribed under Punjab Civil Services (Punishment and Appeal) Rules, 1952 was held to be invalid and thus Article 311 of the Constitution was violated The principle of law enunciated in this judgment still holds the field In the context of this judgment, it may be appropriate to mention that Sh K. D. Sood, learned Counsel for respondent No. 1 tried to take benefit of this judgment in what manner, we are unable to appreciate. Incase 0m Parkash Maurya v. V P. Co-operative Sugar Factories Federation, Lucknow and others, AIR 1986 Supreme Court 1844 while following the above judgment in AIR 1968 Supreme Court 1210, it was again reiterated that continuing in post after completion of maximum period of probation provided under the U. P. Co-operative Societies Employees Service Regulations (1975) the person concerned stands confirmed and his reversion to the lower post by treating him on probation is not legal. In this case the regulation did not express policy lay down as to what would be the status of an employee on the expiry of maximum period of probation where no order of confirmation is issued and the employee is allowed to continue in service. 10 In case M. K Aggarwal v. Gurgaon Gramin Bank and others, 1987 (Supp.)SCC 643, it has been held that there can be only one form for confirmation or promotion of a person belonging to same cadre and no junior shall be confirmed or promoted without considering the case of his senior. Any deviation from this principle will not only demoralising effect in service but would also be vioiative of provisions of the Constitution of India. Applying this principle of law, in the present case when the period of probation had not been extended in case of the petitioner, when he was on probation of two years under Rule 9 of Rules of 1974, for all intents and purposes he shall be deemed to have been confirmed from 10-6-1985 and thus he was entitled to be considered for grant of senior scale and other consequential benefits by taking the said date to be the date of his confirmation and by not doing so and pi acing him below respondent No. 2, respondent No. 1 has acted not only contrary to rules but has further acted illegally and in a arbitrary as well as discriminatory manner, thus violating the provisions of Articles 14 and 16 of the Constitution of India. 11. In another case Shiv Kumar Sharma v Haryana State Electricity Board, Chandigarh and others, AIR 1988 Supreme Court 1673, the apex court has gone a step further by holding that even where an employee has completed his probation period satisfactorily and after three years a minor penalty of stoppage of one increment without any future effect was imposed on him and after one year he was confirmed in post and was placed below his juniors in seniority list by taking the respective dates of appointments of such persons the action of such authorities was held to be illegal and arbitrary. Applying the ratio of this judgment, even if respondent No. I is held to be entitled to take into account Annexure R-l after 10-6-1983, yet the petitioner could not have been denied the benefit of his confirmation date being taken as 10-6*1985 and thus denying him all consequential benefits. 12. After consideration of the entire materials placed on record by the parties, we are of the view that under the Rules of 1974, the probation period of the petitioner came to an end on 10-6-1985 This could be extended by one year. However, it was not extended by respondent No. 1, which position is not in controversy between the parties. The limitation on the power of the employer to extend the probation beyond 3 years coupled with the further requirement at the end of it the services of the petitioner should either be confirmed or discharged render the inference inescapable that if the probationer was not discharged at or before the expiry of the maximum period of probation, then there would be implied confirmation as there was no statutory indication as to what would follow in the absence of express confirmation at the end of even the maximum permissible period of limitation. 13. This is what has been held by the Honble Apex Court in different decisions referred to in this judgment. Needless to say that these decisions squarely govern the case of the petitioner and in no case he could be denied the benefit of his date of confirmation being 10-6-1985 as has been done by Respondent No. 1 in the present case. 14. Shri K. D. Sood, learned Counsel for respondent No. 1 also placed reliance in case D. A V. Public School v. Smt. Umawati, 1993 (2) Sim LC 425 and submitted that on the strength of the said decision, the petitioner is not entitled to any relief. Suffice it to say that the said judgment is wholly on its own facts and is not at all attracted to the facts of the present case as well as in the face of the decisions of Apex Court referred to in this judgment and no advantage can be obtained by the learned Counsel for respondent No. 1 from this judgment, and the contention raised in this behalf is hereby rejected. 15. 15. In the present case, except for issuing Annexure R-l that too after 10-6-1985, respondent No. 1 did not take any action thereon, this is being pointed out that even if it could issue such a letter after the period of probation having not been extended in accordance with rules. 16. Whet) confronted with this situation, Mr Sood submitted that simply because either the period of probation was not extended or that no action was taken by respondent No. 1 on Annexure R-l, the petitioner cannot be deemed to have been confirmed or that he had improved and/or Annexure R-l was waived by his client. He further pointed out that since validity of rule is not challenged as such petitioner is not entitled to any relief in the present writ petition, According to Mr. Sood the work of the petitioner during the probationary period was not found fit by the authorities concerned including D. P. C- and thus he was rightly confirmed from a later date vis-a-vis respondent No, 2 and for advancing his this submission, he placed reliance on the record produced by him, Mr. K. D. Sood tried to justify the action of the respondent No. 1 in placing respondent No 2 as senior to the petitioner and thereby granting consequential benefits of senior scale etc. to her vis-a-vis the petitioner. 17. Though a challenge has been made in the writ petition to Rule 9-A (3) of the Rules of 1974 but we have not been addressed by the learned Counsel for the petitioner on this aspect of the case. 18 We are constrained to observe here that if respondent No. 1 was not satisfied with the work of the petitioner and/or there were any lapses as mentioned in Annexure R-l, it was necessary to have firstly issued the same within the period of probation and at the same time to have taken some action thereon as well as to have extended the period of probation in case of petitioner and thus justify its action in not confirming the petitioner from due date i e. 10-6-1985 It is not disputed that except for issuing Annexure R-l no further action was taken by respondent No. 1 against the petitioner and the moment the petitioner was not given his due he started objecting to it as far back as in the year 1987. 19. 19. No other point has been urged on behalf of the learned Counsel for the parties. 20. As a result of the aforesaid discussion, the present petition is allowed, it is declared that the date of confirmation of the petitioner is 10-6-1985, respondent No. 1 cannot derive any benefit from Annexure R-l for the purpose of giving him a date later than this aforesaid date. As a consequence thereof it is declared that the petitioner is entitled to all consequential benefits of senior scale, seniority etc. by treating his date of confirmation as 10-6-1985 and placement of respondent No. 2 above the petitioner being illegal, arbitrary as well as contrary to rules is hereby set aside and respondent No. 1 is directed to re-draw the final seniority list from the date the petitioner was declared junior to respondent No. 2 showing and assigning him at his right place of seniority above respondent No. 2 in the seniority list and to give him all monetary as well as other benefits admissible in accordance with rules. Annexures P-l, P-6, P-H, PI 4 and P-19 are also quashed and set aside. Petitioner will also be entitled to costs of this writ petition from respondent No. 1 which are quantified as Rs. 2,000. Petition allowed.