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Himachal Pradesh High Court · body

2014 DIGILAW 662 (HP)

Chander Kanta v. State of H. P.

2014-05-28

V.K.SHARMA

body2014
JUDGMENT V.K. Sharma, J. (Oral). The grievance raised by the petitioner in this writ petition under Article 226 of the Constitution, is with regard to her seniority on the post of Actor on the establishment of respondent No.2-department viz-a-viz private respondents No.3 to 8. In nutshell the case of the petitioner is that though she was senior to private respondents No.3 to 8, yet her seniority has been disturbed by linking seniority with confirmation. 2. A perusal of the provisional seniority list of Actors etc. as on 31.5.1994 issued vide office order dated 16.6.1994, Annexure P-1, would go to show that the petitioner figures therein at Sr. No.16 and was thus senior to private respondents No.3 to 8, who figure in the said list at Sr. Nos.17, 21, 24, 19, 22 and 23, respectively. 3. The tentative seniority list as on 31.5.1994, issued vide office order dated 16.6.1994, Annexure P-1, was ultimately finalized vide office order dated 5.12.2000, Annexure P-10 and the same was made effective from 29.2.2000, wherein the petitioner has been assigned seniority at Sr. No.19. However, private respondents No.3 to 8 have been assigned seniority over and above the petitioner at Sr. Nos.10, 13, 16, 11, 14 and 15, respectively. 4. Admittedly, whereas private respondents No.3 to 8 were confirmed on the post of Actor on 7.12.1995, the petitioner was confirmed only on 1.1.2000. 5. It is also not in dispute that determination of seniority from the date of confirmation was delinked by the State Government in terms of office memorandum dated 26.3.1997, Annexure P-18, which in turn was based on the judgment dated 2.5.1990, rendered by the Hon'ble Apex Court in the case of Direct Recruit Class H Engineering Officers' Association vs. State of Maharashtra and others, (1990) 2 Supreme Court Cases 715. It being so, it is not understandable as to how the seniority of the petitioner, who as per the provisional seniority list circulated vide office order dated 16.6.1994, Annexure P-1, ranked senior to private respondents No.3 to 8, was disturbed while issuing the final seniority list vide office order dated 5.12.2000, Annexure P-10, as by then the concept of linking seniority to confirmation had already been ordered to be delinked in terms of the aforesaid judgment of the Hon'ble Supreme Court. 6. 6. Being aggrieved, the petitioner moved this court by way of CWP No.4375 of 2009-I, Chander Kanta vs. State of Himachal Pradesh and others, which vide judgment dated 12.10.2012, Annexure P.19, was ordered to be treated as a representation. Consequently, the petitioner submitted representation dated 25.11.2012, Annexure P-20 to respondent No.2, the Director, Information and Public Relations, Himachal Pradesh, which came to be decided against her vide order dated 5.2.2013, Annexure P-22, on the sole ground that whereas instructions to delink seniority from confirmation were issued on 26.3.1997, the seniority of the petitioner stood already finalized in November, 1996, which assertion on the face of it is against the materials on record inasmuch as that the seniority list issued vide office order dated 20.11.1996, Annexure P-2 was in fact a provisional seniority list, which attained finality only with issuance of office order dated 5.12.2000, Annexure P-10, meaning thereby that by the time the seniority list was finalized, the rule regarding determination of seniority on the basis of confirmation was no more in existence. It being so, the seniority of the petitioner could not have been disturbed on the basis of an obsolete principle, linking seniority with confirmation in the face of the mandatory dictum of law laid down by the Hon'ble Apex Court in the case of Direct Recruit Class II Engineering Officers' Association, (supra) and further reiterated in Union of India vs. Dharam Pal and Others, (2009) 4, Supreme Court Cases 170, wherein it has been held as under vide para 24 of the report:- "24. It is now a well-settled principle of law and in respect whereof there is absolutely no quarrel in view of the decision of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra an employee appointed to a post according to rules would be entitled to get his seniority reckoned from the date of his appointment and not from the date of his confirmation." 7. In view of the above, the petition is allowed. Officers' Assn. v. State of Maharashtra an employee appointed to a post according to rules would be entitled to get his seniority reckoned from the date of his appointment and not from the date of his confirmation." 7. In view of the above, the petition is allowed. Consequently, the seniority assigned to the petitioner as per provisional seniority list as on 31.5.1994, issued vide office order dated 16.6.1994, Annexure P-1, shall stand restored and as a natural consequence, she shall rank senior to private respondents No.3 to 8 even in the final seniority list issued vide office order dated 5.12.2000, Annexure P-10 and subsequent seniority lists including the one issued vide office order dated 17.12.2008, Annexure P-17. However, it is made clear that any consequential benefit accruing to the petitioner owing to restoration of her seniority in terms of this judgment from a retrospective date, would only be on notional basis and she shall be entitled for promotion, if any, and other financial benefits, if any, only prospectively, that is, on and with effect from the date of this judgment. 8. The petition, as also pending application(s), if any, stand disposed of in the above terms.