IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3384 of 2024 Decided on: 9th July, 2025 ------------------------------------------------------------------------------------- Niteesh Sharma and another …..Petitioners Versus State of H.P. and others .....Respondents ------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting?1 Yes. For the Petitioners: Mr. Desh Raj Thakur, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajat Choudhry, Assistant Advocate General, for respondents No.1 and 2. Mr. Hamender Singh Chandel, Advocate, for respondent No.3. ------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge Whether respondent No.3 could be appointed on regular basis when the recruitment process in which he was selected, had advertised filling up the post on contract basis; In absence of any legal backing, was it open for the State to appoint respondent No.3 on regular basis against the post advertised to be filled up on contract basis merely on the ground that the said post was a carried forward 1Whether reporters of print and electronic media may be allowed to see the order? Yes. 2 vacancy of previous years as is contended by respondent No.3; Whether respondent No.3 on the basis of his such regular appointment order could steal march in seniority over the petitioners appointed in previous recruitment process, but on contract basis; Whether State could discriminate in nature of appointment orders issued to incumbents of same selection process, viz. regular to respondent No.3 & contractual to petitioners, are some of the questions involved in this petition. 2. Facts:- 2(i). Respondents No.1 and 2-Public Works Department sent a requisition to the H.P. Public Service Commission on 24.11.2008 (Annexure R-I) for filling up of number of posts of Assistant Engineers (Civil), Class-I (Gazetted) in the pay scale of Rs.7880-13500/- through direct recruitment on regular basis. One such post was to be filled up from Ex-serviceman (UR) category. The said post advertised for Ex-serviceman (UR) remained unfilled. 2(ii). Another advertisement was issued by the respondent-Department on 04.02.2012 for filling up number of posts of Assistant Engineers category wise on contractual basis. The post falling to the category of Ex-serviceman (UR) that remained unfilled in the previous 3 selection process, was advertised once again for filling up under this second advertisement dated 04.02.2012. The post remained unfilled even under this advertisement. 2(iii). Himachal Pradesh Public Service Commission issued another advertisement on 01.09.2012 (Annexure P-2) for filling up 12 posts of Assistant Engineers on contract basis including one post for General Ex- Serviceman (UR Ex-SM) of H.P. The said post was carried forward as unfilled vacancy from previous years. The petitioners participated in the recruitment process under this advertisement and emerged successful. Vide notification dated 16.05.2013 (Annexure P-3), they were appointed as Assistant Engineers on contract basis on the recommendations of H.P. Public Service Commission on fixed contractual amount. The carried forward vacancy reserved for UR Ex-SM remained vacant. 2(iv). Further advertisement was issued by the H.P. Public Service Commission on 11.10.2013 (Annexure P-4), inviting applications for various posts including one backlog post of Assistant Engineer (Civil) against UR Ex-SM to be filled up on contract basis. Respondent No.3 applied under the advertisement for the said post. Himachal Pradesh Public Service Commission declared the result of the 4 selection process for recruitment to the said post on 28.01.2014. Name of respondent No.3 was recommended to the respondent-Department for appointment as Assistant Engineer (Civil) against General Ex-Serviceman category (Annexure P-5). Appointment order was issued to respondent No.3 on 28.02.2014 (Annexure P-16). As per this appointment order, respondent No.3 was regularly appointed to the post of Assistant Engineer (Civil) in the pay scale of Rs.15600-39100+Rs.5400/- Grade Pay. 2(v). Services of the petitioners, who were continuing on contractual basis, were regularized on 23.05.2017 (Annexure P-6) in the pay scale of Rs.15600- 39100+Rs.5400/- Grade Pay. 2(vi). Respondents No.1 and 2 issued an office memorandum on 27.05.2023 (Annexure P-10), whereby the tentative seniority list of Assistant Engineers (Civil) depicting the position as on 31.12.2022 by including therein the names of such Assistant Engineers, who had been appointed after 31.12.2012, was circulated. Objections were also invited to the said tentative seniority list. Names of the petitioners appeared in this tentative seniority list at Sr. Nos.299 and 300, respectively, with dates of their appointment on contract basis as 16.05.2013 5 and 23.05.2017 as their dates of regular appointment. As against this, name of respondent No.3 appeared at Sr. No.72 with his date of regularization mentioned as 28.02.2014. 2(vii). On 02.06.2023, petitioners filed their objections (Annexure P-11) to the tentative seniority list circulated vide office memorandum dated 27.05.2023. One of the objections preferred by the petitioners pertained to the seniority assigned to respondent No.3 in the tentative seniority list. According to the petitioners, respondent No.3 was appointed under the advertisement issued on 11.10.2013, whereas, the petitioners had been appointed under the advertisement dated 01.09.2012. Despite this, respondent No.3 had been assigned seniority placement higher than that of the petitioners; Respondent No.3 could not have been assigned seniority position w.e.f. 28.02.2014; Petitioners having been recruited prior in time to him, were required to be placed above respondent No.3. 2(viii). Final seniority list of Assistant Engineers (Civil) as on 31.12.2022 was issued vide office memorandum dated 14.08.2023 (Annexure P-12). This seniority list did not alter the position inter se the petitioners and respondent No.3. Respondent No.3 was placed at Sr. No.43, 6 whereas, petitioners’ name figured at Sr. Nos.269 & 270, respectively, of the seniority list. 2(ix). Based upon the final seniority list dated 14.08.2023, respondent No.3 was further promoted as Executive Engineer on 22.09.2023 (Annexure P-13). He has also been granted the benefit of Assured Career Progression Scheme (4/9/14 years) on completion of 04 years of service vide notification dated 15.03.2021 (Annexure P-14). Petitioners are still serving as Assistant Engineers (Civil). Primarily, with the grievance that respondent No.3 could not have been assigned seniority higher than that of the petitioners, instant writ petition has been filed by the petitioners seeking following substantive reliefs:- “i) That this Hon'ble Court may be pleased to issue the Writ in the nature of Certiorari or any other appropriate writ order or direction, quashing and setting aside the Impugned seniority list, circulate vide Memorandum dated 14.08.2023 and by directing the respondent to re- determine the seniority list strictly in accordance with the order of seniority or in the alternative the respondent department may be directed to grant all the benefits including increment and seniority from the date on which the junior incumbent i.e. private respondent no. 3 has been getting the higher pay by refixing the pay of the petitioners vis-à-vis private respondent no.3. ii) That the order of regular appointment Annexure P-16 being discriminatory and the order of further promotion to the post of Executive Engineer Annexure P-13 may kindly be quashed and set aside or in the alternative the respondents be directed to convene review DPC and to promote the petitioners to the post of Executive Engineer with effect from 22.09.2023 on which the 7 junior incumbent private respondent no.3 has been promoted with all consequential benefits.” 3. Submissions As per learned counsel for the petitioners, regular appointment of respondent No.3 is in contravention of the advertisements, which had advertized for filling up the said post on contract basis. Respondent No.3’s regular appointment has resulted in discrimination to the petitioners, who participated in similar selection process, but were appointed on contract basis. Respondent No.3’s appointment on regular basis cannot be justified even by treating the vacancy to be a backlog vacancy of previous years. Previously also, the said vacancy was advertised to be filled up on contract basis. The applicable Recruitment & Promotion Rules provide for filling up the vacancy on contract basis. Having taken the decision to fill up the vacancy on contract basis, advertising it accordingly, the State could not have filled it up on regular basis to the detriment of petitioners. Respondent No.3 is to be deemed to be appointed on contract basis w.e.f. 28.02.2014. His services are required to be regularized on completion of specified number of years of contractual service as per applicable policies of the State. He cannot figure above the 8 petitioners, who were appointed prior in time on contract basis under similar recruitment process. Learned Assistant Advocate General did not deny the factual assertions of the petitioner. It was, however, highlighted that petitioners need to implead H.P. Public Service Commission, as it was the Commission, which had recommended appointing respondent No.3 on regular basis. Ground of petitioner’s claim being time barred was also raised. According to learned counsel for respondent No.3, petition besides being barred by delay, laches & res judicata, is otherwise also not maintainable. The vacancy against which respondent No.3 got appointed, was a backlog vacancy of previous years. Being a carried forward vacancy, respondent No.3 was justly appointed against it on regular basis. In any other scenario, respondent No.3 would not have left his regular job in Army to join civil employment on contractual basis. 4. Consideration 4(i). Following material facts are not in dispute:-  It was on 24.11.2008 (Annexure R-1) that the respondent-Public Works Department had sought to fill up one post of Assistant Engineer (Civil) reserved for UR Ex-SM 9 category. The post was to be filled up on regular basis. It, however, could not be filled up and remained vacant.  Second exercise for filling up the aforesaid post from the category of UR Ex-SM was undertaken through advertisement dated 04.02.2012, when carried forward vacancy of UR Ex-SM was sought to be filled up on contract basis. This carried forward vacancy, however, again remained unfilled.  Third exercise for filling up the carried forward vacancy of UR Ex-SM was undertaken through advertisement issued on 01.09.2012 (Annexure P-2). This advertisement apart from notifying one carried forward vacancy of UR Ex-SM, also advertised several other posts of Assistant Engineers to be filled up from different categories on contract basis. The carried forward vacancy of UR Ex- SM was also advertised to be filled up on contract basis. Petitioners participated in the selection process for General category (UR) under this advertisement. The order was issued to the petitioners for their appointment as Assistant Engineer on contract basis on 16.05.2013. Petitioner’s appointment as Assistant Engineer (Civil) on contract basis was in terms of the advertisement dated 01.09.2012, whereunder, all the posts including the carried forward 10 vacancy of UR Ex-SM had been advertised for filling up on contract basis. The post in question meant for UR Ex-SM category advertised to be filled up on contract basis again remained unfilled.  Fourth exercise for filling up the carried forward vacancy of UR Ex-SM was undertaken on 11.10.2013 (Annexure P-4). The post was advertised to be filled-up on contract basis. The advertisement clearly stated that contractual emoluments will be paid for appointment against the said post. Respondent No.3 participated in the selection process under this advertisement. He was appointed on 28.02.2014. Despite the fact that the post of UR Ex-SM had been advertised to be filled up on contract basis, respondent No.3 was appointed on regular basis in regular pay scale. 4(ii). The appointment of respondent No.3 on regular basis under order dated 28.02.2014 pursuant to a selection process carried out under advertisement dated 11.10.2013, which had advertised the carried forward vacancy of UR Ex- SM to be filled up on contract basis on contractual emoluments, created imbalance in the seniority position of respondent No.3 vis-à-vis petitioners. Petitioners, who were appointed in a previous selection process in terms of 11 advertisement dated 01.09.2012 on contract basis, have been reflected as juniors to respondent No.3, who was selected as Assistant Engineer on regular basis after the selection and appointment of the petitioners on contract basis. Hence, the dispute. 4(iii). Petitioners’ grievance that respondent No.3 has been wrongly assigned seniority over them by incorrectly reckoning his regular appointment w.e.f. 28.02.2014 is justified in the given facts and circumstances, as would be apparent from following:- 4(iii)(a). Respondent No.3 had participated in the selection process under advertisement dated 11.10.2013 (Annexure P-4). The said advertisement issued by the H.P. Public Service Commission was very categoric that appointment to the post of Assistant Engineer (Civil) against UR Ex-SM will be made on contract basis on contractual emoluments. The post had been advertised to be filled up on contract basis. Relevant portion of the advertisement is as under:- Name of the Post:- Assistant Engineer (Civil), Class-I (Gazetted) (On Contract basis) Number of post(s): 01 post (UR Ex- SM of H.P.= 01) (backlog post) Pay Band: Rs.15600-39100/- + Rs.5400/- (Grade Pay) (Contractual amount will be paid) 12 4(iii)(b). Respondent No.3’s pleaded defense is that he had verified before applying for the post that the successful incumbent will be appointed on regular basis and it is for this reason, he left his army job & joined as Assistant Engineer (Civil). The above defense is liable to be rejected. Respondent No.3 while applying for the post in question, was alive to the fact that he was applying for the post advertised to be filled up on contract basis. Only contractual emoluments were payable for the appointment. Once the advertisement was issued for filling up the post on contract basis, it is beyond comprehension as to how respondent No.3 was issued the appointment order on regular basis. No such foundation for respondent No.3’s appointment on regular basis has been placed on record by the respondents. No document/order/instruction/circular support respondent No.3’s appointment on regular basis against the post advertised to be filled up on contract basis. Hon’ble Apex Court in Bedanga Talukdar Versus Saifudaullah Khan and others2 held that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. There must be 2 (2011) 12 SCC 85 13 no arbitrariness resulting from any undue favour being shown to any candidate. The selection process has to be conducted strictly in accordance with stipulated selection procedure or else there would be violation of Articles 14 & 16 of the Constitution. Relevant paras from the decision is as under:- “28. Mr. Bhushan, in reply, submitted that upon a thorough examination of the entire fact situation, respondent No.3 in its resolution dated 21-5-2010 has clearly observed that Respondent 1 was treated as a general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. Respondent 3 also looked into the question whether any other candidate, who had not furnished any essential document with the application or at the time of interview but submitted them after the interview were accepted or not. Upon examination of the issue, Respondent 3 has observed that in fact the candidature of one applicant, namely, Smt. Anima Baishya was specifically rejected as she had submitted the application before the Chairperson of Respondent 3 on 26-2-2009, claiming herself to be an SC candidate for the first time. In the case of Respondent 1, the identity card was submitted for the first time with the letter dated 10-12-2009, much after the examination process was over. 29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the 14 relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.” Significance of advertisement and consequence of appointment made in violation thereof was highlighted in Amrit Yadav Versus The State of Jharkhand and Ors.3 as under:- “18. A three-Judge Bench of this Court in Renu v. District and Sessions Judge, Tis Hazari Courts, Delhi4, discussed in detail the requirements of a valid advertisement and observed thus:- “16. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.” (emphasis supplied) 3 Civil Appeal No(s).13950-13951 of 2024, decided alongwith connected appeals on 10.02.2025 4 (2014) 14 SCC 50 15 19. Thus, the advertisements which fail to mention the number of posts available for selection are invalid and illegal due to lack of transparency. This Court further expounded in Renu (supra) that any appointment in violation of the mandate of Articles 14 and 16 of the Constitution of India is not only irregular but also illegal and cannot be sustained. It is a trite law that a valid advertisement inviting applications for public employment must include the total number of seats, the ratio of reserved and unreserved seats, minimum qualification for the posts and procedural clarity with respect to the type and manner of selection stages, i.e., written, oral examination and interviews. 23. In the present case, the advertisement dated 29th July, 2010, issued by respondent No.4 is completely silent on the aspect of total number of posts and the number of reserved quota and general quota posts. We are of the view that if the State chooses not to provide reservation, that decision must also be conveyed through the advertisement along with the afore- mentioned lists of inclusions. This Court in the case of State of Karnataka v. Umadevi5, observed that any appointment made in violation of the statutory rules as well as the mandate of Articles 14 and 16 of the Constitution would be a nullity in law. 31. In our view, since the very selection and appointment of the appellant-employee was a nullity in the eyes of law, the learned Single Judge committed no error in directing the respondent-State to prepare fresh panel of selected candidates without hearing the candidates who were likely to get affected. In this regard, we are benefitted by the decision of this Court in Union of India v. Raghuwar Pal Singh6, wherein, it was held that when the appointment of the candidates is a nullity in law making them disentitled to hold the posts, the principles of natural justice were not required to be complied with, particularly when the same would be nothing short of an exercise in futility. The relevant portion is extracted hereinbelow:- “20. For taking this contention forward, we may assume, for the time being, that the then Director Incharge H.S. Rathore, Agriculture Officer had the 5 (2006) 4 SCC 1 6 (2018) 15 SCC 463 16 authority to issue a letter of appointment. Nevertheless, he could do so only upon obtaining prior written approval of the competent authority. No case has been made out in the original application that due approval was granted by the competent authority before issuance of the letter of appointment to the respondent. Thus, it is indisputable that no prior approval of the competent authority was given for the appointment of the respondent. In such a case, the next logical issue that arises for consideration is : whether the appointment letter issued to the respondent, would be a case of nullity or a mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non- grant of opportunity may not vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law. … 23. In State of Manipur [State of Manipur v. Y. Token Singh, (2007) 5 SCC 65 : (2007) 2 SCC (L&S) 107] , the appointment letters were cancelled on the ground that the same were issued without the knowledge of the department of the State. The Court after adverting to the reported decisions concluded that the candidates were not entitled to hold the posts and in a case of such nature, principles of natural justice were not required to be complied with, particularly when the same would result in futility. …” (emphasis supplied) 32. Hence, in view of the above principle and the factual scenario in the case at hand, it is clear that if the subject appointments were ab-initio nullity in the eyes of law, it was not incumbent on the learned Single Judge to pass the order after hearing all the parties that were likely to be affected by such decision, i.e., the candidates who were already appointed on the subject posts including the appellant-employee.” 17 4(iii)(c). Learned counsel for respondent No.3 made a feeble attempt to justify respondent No.3’s appointment on regular basis even though the post had been advertised to be filled up on contract basis by submitting that the same was a carried forward vacancy from the year 2008. That since the vacancy was not being filled up from the category of UR Ex-SM, therefore, the State Government thought it fit to fill this vacancy on regular basis. The above argument is wholly misconceived. As observed earlier, no document has been placed on record even to demonstrate that a carried-forward vacancy advertised to be filled up on contract basis, could have been filled up on regular basis merely for the reason that the same was a carried-forward vacancy and no one was coming forward to claim that vacancy on contract basis. Learned counsel for respondent No.3 candidly admitted that a carried-forward vacancy, if remains unfilled, is required to be treated as de-reserved and filled up from the candidates belonging to General category. This admission defeats the argument raised by learned counsel for respondent No.3. Further, in case the aforesaid submission of learned counsel for respondent No.3 is to be tested, then also it was for the respondent-Department to urge that 18 plea. The said plea has not been put forward by the respondent-Department. It is not the case of the respondent-Department that the vacancy reserved for UR Ex-SM to be filled up on contract basis was not being filled up and was being carried forward from time to time, therefore, the State Government thought it prudent to fill up the same on regular basis. Even if the aforesaid had been the case, then also in case the vacancy was to be filled up on regular basis, it was required to be advertised as such, so that all eligible and interested to apply, could have applied. It would also be in place to refer to meek justification offered by the State for respondent No.3’s regular appointment despite the vacancy having been advertised to be filled up on contract basis-the explanation being that H.P. Public Service Commission recommended regular appointment of respondent No.3, so State offered regular appointment to him. This justification coming from the State cannot be accepted in the given facts. 4(iii)(d). Furthermore, in terms of applicable Recruitment & Promotion (R&P) Rules for the post of Assistant Engineer, the sanctioned posts could be filled in either on regular or on contractual basis. Appointment on contract basis was one of modes of recruitment under the R&P Rules. 19 Respondent-Department having consciously decided to go for contractual appointment, advertising filling up all vacant posts of Assistant Engineer (Civil) for different categories including UR Ex-SM on contract basis, could not have filled up vacancy of Ex-SM on regular basis, causing heartburn to those like petitioners, who were appointed in similar selection process prior in time, but on contract basis. 4(iii)(e). By giving appointment to respondent No.3 on regular basis pursuant to his selection under advertisement dated 11.10.2013, the respondents have created a class within class. The post of UR Ex-SM filled up under advertisement dated 11.10.2013 had been previously advertised under advertisement dated 01.09.2012. All those incumbents, who were appointed as Assistant Engineers (Civil) under advertisement dated 01.09.2012 in different categories, i.e. General (UR), Scheduled Caste of HP, Scheduled Tribe of HP and OBC of HP, were appointed on contract basis. Petitioners had also participated under this very advertisement for General category posts. One post reserved for UR Ex-SM, which had been advertised under advertisement dated 01.09.2012 and remained unfilled, had been carried forward and advertised once again on 20 11.10.2013 to be filled up on contract basis. The petitioners, who remained successful under advertisement dated 01.09.2012, were appointed as Assistant Engineers (Civil) on contract basis. The petitioners appointed on contract basis under advertisement dated 01.09.2012 are now being shown as juniors to respondent No.3, who was appointed under the later advertisement dated 11.10.2013, by treating his appointment ordered on 28.02.2014 on regular basis. This action of the respondents is arbitrary, unconstitutional and discriminatory. Those who have been selected under the same selection process, cannot be discriminated vis-à-vis mode of appointment, i.e. the petitioners having been appointed on contract basis and respondent No.3 being treated as appointed on regular basis. The State Government, being a welfare employer, cannot discriminate the candidates, who have participated virtually in the same selection process. It has to be concluded that respondent No.3’s appointment on regular basis under memorandum dated 28.02.2014 (Annexure P-16) is discriminatory, illegal and contrary to the advertisement and selection process undertaken by the respondents. 21 4(iv). Learned counsel for respondent No.3 raised following objections regarding maintainability of the writ petition:- (A). Barred by the principle of res judicata. (B). Barred by the principle of delay and laches. A. Principle of res judicata:- As per learned counsel for respondent No.3, Ankush Jamwal Versus State of Himachal Pradesh and others7 had been filed seeking the same relief as prayed for by the petitioners in the instant petition. The aforesaid writ petition was disposed of with directions to the competent authority to decide petitioner’s representation within six weeks. According to learned counsel for respondent No.3, the aforesaid decision would operate as res judicata in the instant case vis-à-vis the relief claimed. Respondents have not placed on record copy of the writ petition, but a copy of the judgment in Ankush Jamwal2 has been placed on record, which reads as under:- “After making his submissions for some time, learned Counsel appearing for the petitioner submits that this petition be disposed of by permitting the petitioner to make a representation to seek benefit of the judgment of the Taj Mohammad, as the reliefs being prayed for by him are squarely covered in terms of the adjudication made therein. 7 CWP No.6047 of 2023, decided on 29.07.2024 22 2. In view of submissions made by learned counsel for the petitioner, without expressing any opinion on the merit of the case, this petition is disposed of with liberty to the petitioner to file representation within a period of two weeks from today, with direction to the respondent/competent authority to decide such representation within a period of six weeks from the date of receipt thereof, in terms of the averments made therein, taking into consideration the judgment being relied upon by the petitioner therein, in accordance with law. 3. Pending miscellaneous applications, if any, also stand disposed of accordingly.” From the above extract, it can be deciphered that petitioner in the aforesaid case had staked claim to count the contractual service rendered by him for the purpose of seniority etc. The claim was based upon the decision rendered in Sh. Taj Mohammad and others Versus The State of Himachal Pradesh and others8. Accordingly, Ankush Jamwal2 was disposed of reserving liberty to the petitioner therein to represent to the competent authority with direction to the competent authority to decide such representation within a time bound schedule. Firstly, the petitioners were admittedly not parties in Ankush Jamwal2. The said decision will not operate as res judicata against the petitioners. Secondly, the issue involved in Ankush Jamwal2 pertained to counting the contractual service rendered by the petitioner therein 8 CWP No.2004 of 2017, decided alongwith connected matter on 03.08.2023 23 for the purpose of his seniority. The said issue has no bearing on the subject matter in the instant petition. The present petition pertains to assigning incorrect seniority position to respondent No.3 over and above the petitioners. That respondent No.3 cannot be treated to have been regularly appointed on 28.02.2014, he having participated in a selection process, whereunder, the post in question was to be filled up on contract basis. Thus, the plea of res judicata taken for respondent No.3 is not tenable. B. Delay & laches:- Learned counsel for respondent No.3 submits that it was on 28.02.2014 that respondent No.3 was appointed on regular basis. He was further promoted to the post of Executive Engineer on 22.09.2023. Due benefits under the Assured Career Progression Scheme (4/9/14) were also granted to respondent No.3 on 15.03.2021. All these benefits have been conferred upon respondent No.3 by taking his date of regular appointment as 28.02.2014. These benefits cannot be withdrawn from respondent No.3 at this belated stage. Petitioners’ claim is barred by delay and laches. The contentions raised for respondent No.3 about petitioners’ claim suffering from delay & laches is 24 mis-founded. Admittedly, the advertisement under which respondent No.3 participated, was issued on 11.10.2013. The advertisement was issued for filling up one post of Assistant Engineer (Civil) reserved for UR Ex-SM on contract basis. It can reasonably be expected that petitioners were under the bonafide impression that the selection and appointment pursuant to the aforesaid advertisement would be made on contract basis. Petitioners cannot be expected to be aware about the actual appointment order issued to respondent No.3 on regular basis. It is also a matter of record that first tentative seniority list depicting the position of Assistant Engineers (Civil) appointed after 31.12.2012 was issued on 27.05.2023. Prior thereto, seniority list of Assistant Engineers was in circulation, which included incumbents appointed prior to 31.12.2012. The seniority list was not updated after 01.01.2013. This assertion made for the petitioners is fortified by the decision rendered in Ankush Jamwal Versus State of H.P. and others9, relevant paras of which read as under:- “5. I have also gone through the records. It is evident from the reply filed on behalf of the respondents that the seniority list of Assistant Engineers in the department of 9 CWP No.5718 of 2022, decided on 24.04.2023 25 Public Works is in circulation which includes incumbents, who have been appointed prior to 31.12.2012. The reason assigned, for not updating the seniority list by including incumbents appointed after 01.01.2013 is the pendency of multiple litigations. 6. Non-updation of seniority list is not in the interest of any stake holder. The worst sufferers will be the respondents themselves. The interim arrangements, made or proposed to be made by respondents may prove counter productive. On one hand, the rightful persons may potentially be denied the right of consideration for promotion, on the other, the incumbents, not otherwise entitled for promotion, will be holding charge of higher post, may be on temporary basis. 7. In the given circumstances, I am of the considered view that the seniority list of Assistant Engineers should be prepared with sufficient expedition, so as to settle the matter once for all. This Court has been informed that the matters pertaining to seniority of Assistant Engineers are pending since long. 8. Keeping in view the facts and circumstances of the case, respondents are directed to prepare updated seniority list of Assistant Engineers in the department of Public Works by including all the eligible incumbents appointed after 01.01.2023. This exercise should positively be done within four weeks from today. In the meanwhile, respondents shall not promote any Assistant Engineer in the department of Public Works to the next higher post either on permanent or temporary basis or even by way of entrustment of charge.” It is only pursuant to the directions issued in the aforesaid decision that the respondents issued office memorandum dated 27.05.2023 (Annexure P-10), circulating the tentative seniority list of Assistant Engineers as on 31.10.2022, wherein for the first time, names of the petitioners and respondent No.3 found their places. Respondent No.3 was assigned tentative seniority position 26 at Sr. No.72 with date of his regularization shown as 28.02.2014, whereas, names of the petitioners figured at Sr. Nos.299 & 300, respectively with their dates of regularization as 23.05.2017. Before circulation of this tentative seniority list, the petitioners had no reasons to believe that respondent No.3 had been appointed on regular basis w.e.f. 28.02.2014 and accordingly he would be assigned seniority on that basis. It has also come on record that immediately on coming to know about the tentative seniority list, the petitioners represented to the respondents on 02.06.2023 (Annexure P-11), inter alia, raising specific grievance against seniority assigned to respondent No.3 by taking his date of regular appointment as 28.02.2014. The final seniority list was issued by the respondents on 14.08.2023 (Annexure P-12), retaining the same position qua the petitioners and respondent No.3. In the aforesaid background, the petitioners instituted this writ petition on 22.04.2024. The grievance raised by the petitioners cannot be said to be suffering from delay and laches. They cannot be presumed to be aware of respondent No.3 having been appointed on regular basis on 28.02.2014. 5. For the foregoing reasons, the writ petition is allowed. Final seniority list of Assistant Engineers (Civil) 27 circulated vide office memorandum dated 14.08.2023 (Annexure P-12) is quashed and set aside. Respondents No.1 and 2 are directed to redraw the seniority list of Assistant Engineers (Civil) keeping in view the observations made hereinabove by reckoning 28.02.2014 as the date of contractual appointment of respondent No.3. Monetary benefits released in excess to respondent No.3 till date by taking his appointment on 28.02.2014 to be on regular basis, be not withdrawn from him. All other legal consequences including review DPC and re-fixation of respondent No.3’s pay for future shall follow. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. Jyotsna Rewal Dua July 09, 2025 Judge Mukesh