Research › Search › Judgment

Himachal Pradesh High Court · body

2026 DAILYLAW 16943 (HP)

Yashpal Dhiman v. State of Himachal Pradesh

2026-03-20

Jiya Lal Bhardwaj

body2026
JUDGMENT : Jiya Lal Bhardwaj, J. By way of present petition, the petitioner has prayed for the following substantive reliefs:- “(a) That the entire record pertaining to the instant case may kindly be summoned and subjected to scrutiny by this Hon’ble Court. (b) That this Hon’ble Court may kindly be pleased to issue a writ in the nature of certiorari, quashing the final seniority list appended along with the memorandum dated 09th July, 2012 (Annexure P-6) with all consequences. (c) That this Hon’ble Court may very kindly be pleased to issue a writ in the nature of mandamus and to direct the respondents to redraw the seniority list by restoring the seniority of the present petitioner, above the respondent No.3 herein, as per the tentative seniority list (Annexure P-4) with all consequential benefits arising there from, including promotion etc.” 2. The precise grouse raised by the petitioner in the present petition is that as per the provisional seniority list of Assistant Engineer (Electrical), circulated vide Office Memorandum dated 01.12.2011 (Annexure P-4), he was assigned seniority at serial No.2. However, when the final seniority list was circulated vide Memorandum dated 09.7.2012 (Annexure P-6), his seniority position was changed to Sr. No.15 and private respondents have been shown senior, though, he was promoted to the post of Assistant Engineer (Electrical) earlier to them. 3. As per the averments made in the petition, the petitioner was appointed as Junior Engineer (Electrical) with the respondent-Department on 17.06.1979. The petitioner belongs to Scheduled Caste (SC) category. 4. In the year 1993, the respondent-Department decided to fill up 4 posts of Assistant Engineer (Electrical), which is the next promotional post from the post of Junior Engineer (Electrical). 5. Though the petitioner had rendered 7 years of service as Junior Engineer (Electrical) and was eligible for being considered for promotion to the post of Assistant Engineer (Electrical), but his candidature was not considered, which forced him to approach the erstwhile Himachal Pradesh Administrative Tribunal by filing an original application, which was transferred to this Court and registered as CWP(T) No.4067 of 2008, titled, Yash Pal Dhiman vs. State of H.P. and others. This Court had allowed the said petition vide judgment dated 23.12.2010, directing the respondent-Department to convene the review DPC within two months from the date of supply of copy of the judgment and the competent authority shall consider the case of the petitioner as on 12.11.1993 for promotion from the post of Junior Engineer (Electrical) to the post of Assistant Engineer (Electrical) in Scheduled Caste category together with the case of any other eligible Scheduled Caste category Junior Engineer (Electrical) senior to him along with respondents No.3 to 5 in the said writ petition. 6. In sequel to the directions given by this Court, the respondents had promoted the petitioner to the post of Assistant Engineer (Electrical), vide office order dated 06.07.2011 (Annexure P-2) and his date of promotion was shown as 31.12.1991. After his promotion to the post of Assistant Engineer (Electrical), the petitioner had made a representation dated 15.07.2011 (Annexure P-3) for implementation of the promotion order. Thereafter, vide office memorandum dated 01.12.2011, provisional seniority list of Assistant Engineer (Electrical) as on 31.10.2011 was circulated, inviting objections from the persons aggrieved by the provisional seniority list and in the said seniority list, the petitioner was assigned Seniority at serial No.2. 7. The respondents-Department after considering the representations made by the private respondents, except respondent No.5, issued a final seniority list of Assistant Engineer (Electrical) as on 31.10.2011, vide Memorandum dated 09.07.2012 (Annexure P-6) and in this final seniority list, the petitioner was assigned seniority at Sr. No.15. 8. The petitioner is aggrieved by seniority list (Annexure P-6), wherein he was assigned seniority at Sr. No.15 and further by assignment of the seniority, to other respondents, above him. 9. The petitioner has averred in the petition that the final seniority list is violative of principles of natural justice since the petitioner was not heard in the matter and the same has been unilaterally changed, behind the back of the petitioner. The principle of audi alteram partem has not been adhered to. 10. It has further been averred that the seniority list (Annexure P-6) issued is contemptuous for the reason that this Court while deciding the petition, held that the petitioner had wrongly been omitted to be promoted in the year 1993 and the said anomaly deserves to be rectified by convening a review DPC providing promotion to the petitioner along with all consequential benefits. 11. 11. Respondents No.1 and 2 filed reply to the petition and admitted that after the directions given by this Court, the review DPC was convened on 09.06.2011 and as per the recommendation of the DPC, the petitioner was promoted as Assistant Engineer (Electrical) w.e.f. 31.12.1991. 12. It has further been averred that as per the provisional seniority list, there was great ambiguity in fixing the seniority of Assistant Engineers (Electrical) of reserved category viz the petitioner, who was assigned seniority at Sr. No.2, whereas he should have been assigned seniority below Surender Kumar, P.R. Bisht, N.K. Gandotra and I.C. Sharma, for the reasons that though the petitioner being from Scheduled Caste category, was promoted prior to them, but after their promotion, the original seniority in the entry cadre of Junior Engineers (Electrical) will have to be assigned to them. 13. The respondents-State have also placed reliance upon the instructions dated 27.03.1997 (Annexure R-3), which clearly provides that in case a person from General Category is promoted after reserved category candidate, he regain the seniority as per the entry level. 14. Respondent No.10 filed a separate reply and averred that he belongs to category of Diploma holders and is to be considered for further promotion to the post of Executive Engineer (Electrical) against 30% quota prescribed for diploma holder Engineers. Since respondent No.10 was also promoted as Assistant Engineer (Electrical), before the petitioner could be considered for further promotion under Scheduled Caste category and also the petitioner a roster point promotee as reserved cannot be considered senior, since respondent No.10 was senior to the petitioner in the entry grade of Junior Engineer (Electrical) and he had regained his seniority on the principle of “catch-up”, as he had caught up the petitioner in the cadre of Assistant Engineer. Thus, respondent No.10 has rightly been placed at Sr. No.12, above the petitioner, who was assigned seniority at serial No.15. 15. The petitioner has not filed rejoinder to the replies filed by the respondents. 16. I have heard the learned counsel for the parties and also perused the record carefully. 17. It is not in dispute that the petitioner was appointed as Junior Engineer later than the private respondents. 18. 15. The petitioner has not filed rejoinder to the replies filed by the respondents. 16. I have heard the learned counsel for the parties and also perused the record carefully. 17. It is not in dispute that the petitioner was appointed as Junior Engineer later than the private respondents. 18. It is settled law that once the person from General Category is promoted to the higher post after the candidate from the reserved category, he regains seniority on the principle of "catch-up" as per the law enunciated in Union of India and others versus Virpal Singh Chauhan and others, (1995) 6 SCC 684 . The principle enunciated in Virpal Singh Chauhan’s case (supra) was followed by a three-Judge Bench of the Hon’ble Supreme Court in Ajit Singh Januja and others vs. State of Punjab and others, (1996) 2 SCC 715 and held that a balance has to be maintained so as to avoid reverse discrimination and a rule or circulation which gives seniority to a candidate belonging to a reserved category promotee on the basis of the roster point would violate Articles 14 and 16 of the Constitution of India. 19. The Hon’ble Supreme Court, however, in a subsequent judgment in Jagdish Lal and others vs. State of Haryana and others, (1997) 6 SCC 538 , took a contrary view and held that by virtue of the principle of continuation officiation, a candidate belonging to the reserved category, who is promoted earlier than a General candidate due to an accelerated promotion, would not loose seniority in the higher cadre. 20. This conflict of decisions was resolved by the Constitution Bench in Ajit Singh and others (II) vs. State of Punjab and others, (1999) 7 SCC 209 . The relevant paragraphs whereof are as under:- “77. We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, - vis-à-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate - he will have to be treated as senior, at the d promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate - he will have to be treated as senior, at the d promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal and Ajit Singh have been correctly decided and that Jagdish Lal is not correctly decided. Points 1 and 2 are decided accordingly. 78 to 80 xxxxx 81. As accepted in Virpal (see SCC at p. 702) and Ajit Singh (see SCC at p. 729), we hold that in case any senior general candidate at Level 2 (Assistant) reaches Level 3 (Superintendent Grade II) before the reserved b candidate (roster-point promotee) at Level 3 goes further up to Level 4 in that case the seniority at Level 3 has to be modified by placing such a general candidate above the roster promotee, reflecting their inter se seniority at Level 2. Further promotion to Level 4 must be on the basis of such a modified seniority at Level 3, namely, that the senior general candidate of Level 2 will remain senior also at Level 3 to the reserved candidate, even if the latter had reached Level 3 earlier and remained there when the senior general candidate reached that Level 3. In cases where the reserved candidate has gone up to Level 4 ignoring the seniority of the senior general candidate at Level 3, seniority at Level 4 has to be refixed (when the senior general candidate is promoted to Level 4) on the basis of when the time of reserved candidate for promotion to Level 4 would have come, if the case of the senior general candidates was considered at Level 3 in due time. To the above extent, we accept the first part of the contention of the learned counsel for the general candidates. Such a procedure in our view will properly balance the rights of the reserved candidates and the fundamental rights guaranteed under Article 16(1) to the general candidates. 82. One of the objections raised before us and which appealed to the Full Bench in Jaswant Singh case was that this "catch-up" principle would lead to frequent alteration of the seniority list at Level 3. 82. One of the objections raised before us and which appealed to the Full Bench in Jaswant Singh case was that this "catch-up" principle would lead to frequent alteration of the seniority list at Level 3. We do not find any difficulty in this behalf. The seniority list at Level 3 would have only to be merely amended whenever the senior general candidate reaches Level 3.” 21. The Constitution Bench again had the occasion to consider the principle of "catch-up" in M. Nagaraj and others vs. Union of India and others, (2006) 8 SCC 212 , after the incorporation of Article 16(4-A) in the Constitution, which provides that nothing in the Article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority to any class or classes of post in the services, under the State, in favour of the Scheduled Caste and the Scheduled Tribes, which in the opinion of the State, are not adequately represented in the services under the State. However, it was held that the "catch-up" Rule and the concept of the consequential seniority are essential concepts in services jurisprudence. Thus, they cannot be elevated to the status of a constitutional principle. Therefore, neither the "catch-up" Rule nor “consequential seniority” is implicit in Clauses (1) and (4) of Article 16 of the Constitution. 22. Again the Hon’ble Supreme Court in S. Panneer Selvam and others vs. State of Tamil Nadu and others, (2015) 10 SCC 292 , had the occasion to deal with the similar preposition and held that consequential seniority of such reserved category promotees can be fixed only if there is express provision for such reserved category promotees in the State Rules. The relevant para of the judgment reads as under:- “26. The true legislative intent under Article 16(4-A) of the Constitution is to enable the State to make provision or frame rules giving consequential seniority for the accelerated promotion gained based on the rule of reservation. Rule 12 evidently does not provide for the consequential seniority for reserved category promotees at any point of time. The consequential seniority for such reserved category promotees can be fixed only if there is express provision for such reserved category promotees in the State rules. Rule 12 evidently does not provide for the consequential seniority for reserved category promotees at any point of time. The consequential seniority for such reserved category promotees can be fixed only if there is express provision for such reserved category promotees in the State rules. In the absence of any specific provision or policy decision taken by the State Government for consequential seniority for reserved category accelerated promotees, there is no question of automatic application of Article 16(4-A) of the Constitution.” 23. However, in the present case, there is no instruction to count the seniority, but on the contrary the instructions dated 27.03.1997 says otherwise. 24. Thereafter in B.K. Pavitra and others vs. Union of India and others, (2017) 4 SCC 620 , the Hon’ble Supreme Court again reiterated the same view and rejected the plea that seniority was not a fundamental right and the "catch-up" Rule fully applies. The relevant para of the judgment reads as under:- “29. It is clear from the above discussion in S. Panneer Selvam case that exercise for determining "inadequacy of representation", "backwardness" and "overall efficiency", is a must for exercise of power under Article 16(4-A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at the same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4-A), it is the "catch-up" rule which fully applies. It is not necessary to go into the question whether the Corporation concerned had adopted the rule of consequential seniority.” 25. In the present case, when the tentative seniority list was issued, no doubt, the petitioner was shown at Sr. No.2, but when the representations made by the affected parties were considered by the competent authority, it was noticed that though the petitioner has been promoted to the post of Assistant Engineer earlier to the private respondents, but in the entry grade of Junior Engineer (Electrical), they were senior to the petitioner. Further the petitioner was not promoted to the next higher post, when the private respondents were promoted and, therefore, as per the law laid down by the Constitution Bench in Ajit Singh (II) case (supra), the private respondents were rightly assigned the seniority above the petitioner and does not warrant any interference. 26. Admittedly, the petitioner has not laid challenge to the instructions dated 27.03.1997, which clearly provides that the person who is promoted from General Category after the candidate from the reserved Category, regains seniority though the person is promoted earlier to the General Category candidate. 27. Since, there is no challenge to the notification and even otherwise as per the settled preposition of law that after promotion, the candidate from the General Category regains seniority, there is no error having been committed by the respondent-Department while issuing the final seniority list. 28. Consequently, I do not find any merit in the present petition and the same is accordingly dismissed. However, there shall be no order as to costs. 29. Pending application(s), if any, shall also stand disposed of.