Vivek Katoch vs STATE OF HP and ors
- Court
- High Court of Himachal Pradesh
2026:HHC:47799
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No.1091 of 2019
Reserved on: 05.10.2026
Decided on: 30.10.2026
Uploaded: 30.10.2026
________________________________________________________
Vivek Katoch and others ...Petitioners
Versus
State of H.P. and others ...Respondents
________________________________________________________
Coram
Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge
1
Whether approved for reporting? Yes
For the petitioners: Mr. Sunil Mohan Goel, Senior Advocate
with Mr. Abhinav Mohan Goel, Advocate.
For the respondents: Mr. R.P. Singh, Deputy Advocate General,
for respondents No.1 and 2-State.
Respondents No.3 to 11, 14 and 16 to 23
ex-parte.
Mr. Arun Kumar, Advocate vice Mr. Bhim
Raj Sharma, Advocate, for respondent
No.15.
Mr. Vijay Kumar Verma, Advocate, for
respondents No.12, 13, 24 to 27.
Jiya Lal Bhardwaj, Judge
The petitioners by way of present petition have
prayed for the following substantive reliefs:-
“a) This Hon’ble Court may kindly be pleased to
issue a Writ of Certiorari quashing Memorandum dated
25.5.2011 Annexure P10 whereby the objections of
the petitioners to the tentative seniority list of
Assistant Engineers have been rejected and
Memorandum dated 24.5.2011 Annexure P11 i.e. the
seniority list of Assistant Engineers dated 24.5.2011 as
1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
2
on 31.12.2009 to the extent that the petitioners have
been reflected in the said seniority list en bloc below
the promotees of the year 2008 against the post of
Assistant Engineer.
b) That this Hon’ble Court may be pleased to issue
a writ of Mandamus to the Respondent State to confer
upon the petitioners seniority from the date their
names were recommended for appointment as
Assistant Engineers by H P Public Service Comission
i.e. w.e.f. 4.11.2008 and thereafter re draw the
seniority of petitioners viz a viz the promotees of the
year 2008 against the post of Assistant Engineers
(Civil) including the private respondents as per
instructions issued in this regard by the Government of
Himachal Pradesh keeping in view the principle of Rota
and Quota.”
High Court of H.P.
2. Shorn of unnecessary details, the key facts of the
case are that an advertisement No.II/2008 (Annexure P-1) was
issued by the Himachal Pradesh Public Service Commission (in
short “Commission”) to fill up the posts of Assistant Engineer
(Civil), Class-I (Gazetted) in respondent No.1-Department. The
total 15 number of posts were advertised, which included 13
posts for the General category and 2 posts for the Scheduled
Tribe category. The last date for submission of applications was
21.05.2008 and for tribal and remote areas, the same was
05.06.2008. The petitioners being fully eligible and fulfilling the
criteria, had applied for the posts well before the last date fixed
for receipt of the applications. The petitioners were called for the
screening test conducted by the Commission on 21.08.2008 and
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
3
the successful candidates were invited for interviews, which were
High Court of H.P.
held between 17.10.2008 to 25.10.2008. After conducting the
interviews, the Commission issued a press note declaring the
result of the interviews and the petitioners were recommended
for appointment to the post of Assistant Engineer (Civil) in the
last week of October, 2008. The selected candidates were
subjected to medical examination and other formalities like
verification of character and antecedents etc. were completed in
the first fortnight of December, 2008. The petitioners were
thereafter offered appointment against the posts of Assistant
Engineer (Civil), vide memorandum dated 09.01.2009, (Annexure
P-5) and in sequel to the appointment orders, the petitioners
joined in respondent No.1-Department.
3. It has been averred that the petitioners were
appointed against those vacancies of direct recruits, which were
existing before April, 2008 and recommended to be filled up by
way of appointment after the recommendations made by the
Commission in the last week of October, 2008 and since the
formalities were completed in all respects in December, 2008
itself, they were offered appointment in the year 2009 and not in
the year 2008.
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
4
4. It has also been averred in the petition that
High Court of H.P.
respondent No.1-State had convened two meetings of the
Departmental Promotion Committee (in short “DPC”) for
promotion of Junior Engineers (Civil) on 15.03.2008 and
30.12.2008. In the DPC held on 30.12.2008, respondents No.3 to
30 were promoted to the posts of Assistant Engineers (Civil) and
further one Sh. Surinder Mohan, who was Planning Assistant, was
also promoted as Assistant Engineer (Civil). The promotion of the
aforementioned persons was made during the period when the
petitioners stood recommended for appointments against the
posts of Assistant Engineers (Civil) and were awaiting their
appointment orders.
5. As per the Recruitment and Promotion Rules (in short
“R&P Rules”) prevailing on the date of making selection and
appointment of the petitioners, as notified on 20.03.1997
(Annexure P-6), the inter se seniority of Junior Engineers
promoted as Assistant Engineers and direct recruit Assistant
Engineers in one calendar year, is maintained on the basis of
rota-quota Rule, as per which, all the appointments made in one
calendar year against the post of Assistant Engineer, either by
way of direct recruitment or by way of promotion, are conferred
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
5
seniority on the basis of instructions issued by the Department of
High Court of H.P.
Personnel, as per which, the inter se seniority of the promotees
and direct recruits is to be maintained in the following manner:
(i) Promotee
(ii) Direct recruit
(iii) Promotee
(iv) Direct recruit so on and so forth.
6. Since the petitioners were recruited as Assistant
Engineers (Civil) in a process initiated in April, 2008, they took up
the matter with regard to fixation of their seniority with
respondent No.1-State, keeping in view the fact that despite
having been recommended for appointment in October, 2008,
they were appointed only in January, 2009 and they will be
treated as entrants of calendar year 2009. However, it was
assured to them that since they have been recommended for
appointment in October, 2008, they will be considered for
seniority from the date of recommendation and the date of
appointment would have no adverse effect on their seniority vis-
a-vis the promotees of 2008, especially those Junior Engineers,
who were promoted as Assistant Engineers in December, 2008.
However, when the tentative seniority list of Assistant Engineers
(Civil) as on 31.12.2009 was issued vide office memorandum
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
6
dated 24.02.2010 (Annexure P-7), the names of the petitioners
High Court of H.P.
were reflected en-bloc below the Assistant Engineers (Civil), who
were promoted as such either on 31.03.2008 or thereafter. This
was followed by the issuance of final seniority list of Assistant
Engineers (Civil) as on 31.12.2009, as per office memorandum
dated 20.07.2010 (Annexure P-7A). In the final seniority list, the
petitioners were reflected below the Assistant Engineers (Civil)
promoted in the year 2008.
7. The petitioners feeling aggrieved by the said action,
took up the matter with the authorities that how could they were
being reflected below the promotees of 2008 en-bloc, especially
when they were recruited in a process initiated in the year 2008
and recommendations were made by the Commission in the first
week of November, 2008. However, it was informed that the
seniority list so issued by the Department was soon going to be
reviewed/revised in view of the judgment passed by this Court in
CWP No.1358 of 2008, titled, S.S. Kutlehria and others vs. State
of H.P. and others and the petitioners were called upon to wait till
the issuance of the next tentative seniority list. In compliance
with the judgment passed in S.S. Kutlehria's case (supra),
respondent No.1-State issued office memorandum dated
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
7
29.01.2011 (Annexure P-8), which is a tentative seniority list of
High Court of H.P.
Direct/Degree Holders/AMIE Assistant Engineers (Civil) re-drawn
after holding review DPC in view of the judgment. However, in
this tentative seniority list also, the petitioners were reflected en-
bloc below the promotees of the year 2008. The petitioners filed
representations against the said tentative seniority list, but the
representations/objections preferred by the petitioners were
summarily and arbitrarily rejected vide memo dated 25.05.2011
(Annexure P-10) and the final seniority list of Direct/Degree
holders/AMIE Assistant Engineers (Civil), showing the position as
on 31.12.2009 was issued, vide office memorandum dated
24.05.2011 (Annexure P-11), wherein the petitioners were again
reflected below the promotees of the year 2008.
8. After issuance of the final seniority list, respondent
No.1-State issued Notification dated 28.07.2011 (Annexure P-12),
whereby the revised promotion orders were issued and more
Junior Engineers, namely Pardeep Kumar, Vivek Kr Hazari etc.,
were ordered to be promoted on notional basis w.e.f. 31.12.2008,
thus making the petitioners junior even to the said persons in the
seniority list. The names of the said persons mentioned in the
notification were included in the implementation of the judgment
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
8
passed in S.S. Kutlehria's case (supra) and other judgments
High Court of H.P.
mentioned therein.
9. The petitioners feeling aggrieved by the final
seniority list dated 24.05.2011 and further rejection of their
representations, have approached this Court inter alia on the
grounds that since they were appointed as Assistant Engineers
(Civil), by way of direct recruitment through Commission in a
recruitment process initiated in April, 2008 against the vacancies
belonging to the quota of direct recruits, which were available
even before April, 2008, the petitioners, who were recommended
by the Commission in the first week of November, 2008 i.e. on
04.11.2008 and for whom all the formalities for their appointment
were completed in the first half of December, 2008, the
appointment orders issued on 09.01.2009 were to be considered
for the vacancies belonging to the quota of direct recruits in the
year of 2008, especially when the process was initiated in April,
2008.
10. It has also been averred that the persons, who were
promoted on 31.12.2008 to the posts of Assistant Engineers
(Civil) on the basis of the DPC held on 30.12.2008, cannot be
assigned seniority above the petitioners in view of the principle of
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
9
rota-quota Rule. As per the instructions issued by the Department
High Court of H.P.
of Personnel, there cannot be any appointment over and above
the quota of any particular category in any recruitment year and
number of vacancies filled from both the modes, has to be in the
ratio provided for in the R&P Rules. However, in the case of the
petitioners, not even a single person was recruited directly in the
year 2008, despite the fact that the selection process was duly
initiated in April, 2008 and all the formalities stood completed
and thus, the action on the part of respondent No.1-State in not
offering them appointments in the year 2008 is arbitrary,
discriminatory and illegal. As per the past practice, the direct
recruits are conferred seniority from the date of their
recommendation by the Commission and denying seniority to the
petitioners from that date also is arbitrary, discriminatory and bad
in law. Further, since the DPC was convened on 30.12.2008 and
promotions were made on 31.12.2008 itself speaks volumes
about the conduct of respondent No.1-State and favoritism,
which has been exercised by respondent No.1-State in favour of
the promotees, which is detrimental to the interest of the
petitioners.
11. It has further been averred that the grant of seniority
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
10
to the petitioners by respondent No.1-State from 09.01.2009 is
High Court of H.P.
bad in law because earlier respondent No.1-State had conferred
seniority upon Assistant Engineers (Civil) recruited by way of
direct recruitment in the I&PH Department from the date of their
being recommended for appointment to the Department by the
Commission. It has also been averred that as per the instructions
issued by the Department of Personnel, Government of Himachal
Pradesh on the subject of maintenance of seniority between
direct recruits and promotees, it categorically provides that in
order to help the appointing authorities in determining the
number of vacancies to be filled during a year under each of the
methods of recruitment prescribed, a vacancy register giving a
running account of the vacancies arising and being filled from
year to year should be maintained in the prescribed proforma.
However, in the present case, respondent No.1-State has not
followed the said procedure and assigned seniority to the
petitioners from the date of offering the appointment to them.
12. It has further been averred that in March, 2008, all
57 incumbents from the post of Junior Engineer (Civil) were
promoted against the posts of Assistant Engineer (Civil) and in
December, 2008, 12 incumbents were promoted as Assistant
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
11
Engineers (Civil). Thus, in all 69 promotees were promoted to the
High Court of H.P.
posts of Assistant Engineer(Civil) in the year, 2018. On the other
hand, the advertisement issued for direct recruitment inviting
applications for filling up 15 number of posts of Assistant
Engineer (Civil) by way of direct recruitment, no post was filled
up in the year 2008. As per the R&P Rules for promotion to the
post of Assistant Engineer (Civil), the post is to be filled 25% by
way of direct recruitment and 75% by way of promotion. Even
the promotion quota is further divided into various other
categories. These categories also have their percentage fixed for
the purpose of promotion. As per the instructions issued by the
Department of Personnel of the Government of Himachal
Pradesh, the number of vacancies to be filled up both by way of
direct recruitment and promotion in one year should be in
proportion to the percentage mentioned in the R&P Rules. This
means, that when respondent No.1-State advertised 15 posts to
be filled up by way of direct recruitment, it could not have filled
more than 45 posts by way of promotion. However, as the facts
speak for themselves, 67 promotions were made, which is far-far
in excess of the quota prescribed in the R&P Rules. The degree
holder Junior Engineers (Civil) as well as AMIE qualification
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
12
holder Junior Engineers (Civil) along with diploma holders have
High Court of H.P.
been promoted much in excess of their respective quota
mentioned in the R&P Rules. For example, the quota of degree
holder Junior Engineer (Civil) in the promotion quota is 15% out
of 75% and of AMIE is 10% out of 75%. Accordingly, AMIE
qualification holders were entitled to 4.5 seats in total 45
promotion seats and degree holder Junior Engineers (Civil) were
entitled to about 7 posts out of 45, but these categories have
been given promotions for 25 posts against their legitimate share
of about 11 or 12 posts and that too from a total 45 posts. Thus,
the excess promotion has to be treated as adhoc promotion and
those promotees, by no stretch of imagination, could even
otherwise have been conferred seniority over and above the
petitioners or along with the petitioners by applying rota-quota
Rule. Hence, the promotees in excess of their proportionate
quota en-bloc should have been reflected below the petitioners
as far as the seniority is concerned. However, respondent No.1-
State in arbitrary manner has assigned seniority to the petitioners
en-bloc below the promotees taking their date of appointment as
09.01.2009 and thus, prayed for quashing the memorandum
dated 25.05.2011 (Annexure P-10), whereby the objections of
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
13
the petitioners to the tentative seniority list of Assistant Engineers
High Court of H.P.
(Civil) have been rejected and further the memorandum dated
24.05.2011 (Annexure P-11) i.e. the seniority list of Assistant
Engineers (Civil) dated 24.05.2011 as on 31.12.2009 to the
extent that the petitioners have been reflected in the said
seniority list en-bloc below the promotees of the year 2008
against the post of Assistant Engineer (Civil) , with a further
direction to the respondents to confer upon them the seniority
from the date their names were recommended for appointment
as Assistant Engineers (Civil) by the Commission w.e.f.
04.11.2008, and thereafter re-draw the seniority of petitioners
vis-a-vis the promotees of the year 2008 against the posts of
Assistant Engineer (Civil), including the private respondents.
13. Respondents No.1 and 2 filed reply to the petition
and in preliminary submissions submitted that merely
selection/recommendations of the petitioners by the Commission
in 2008, does not confer any right on them to be offered
appointment in the same year i.e. 2008. It is a well settled
position of law that it is the prerogative of the appointing
authority to offer or not to offer appointment till it considers
necessary. However, in the present case, certain codal formalities
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
14
such as verification of character and antecedents, medical
High Court of H.P.
examination, induction training etc., of the petitioners had to be
completed before they were considered for offering appointment
to the post of Assistant Engineer (Civil) in the respondent-
Department. Therefore, the petitioners cannot claim to be
appointed in the specific year or date as a matter of right and as
such the petition deserves to be dismissed in limine. It has
further been averred that the Secretary of the Commission had
forwarded the recommendations of 15 candidates, including the
petitioners, vide office letter dated 04.11.2008 to the respondent-
Department for consideration of giving offer of appointment to
the post of Assistant Engineer (Civil), (Class-I Gazetted) after
verifying/checking their credentials/documents and completing all
codal formalities to the satisfaction of the appointing authority.
The said recommendations were submitted to respondent No.1-
appointing authority, for approval on 10.11.2008, which was
approved on 18.11.2008. The offer of appointment letter to the
selected candidates is issued only after completion of certain
codal formalities such as verification of their character and
antecedents. After the approval by respondent No.1, necessary
steps were also taken for completing the codal formalities and on
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
15
25.11.2008, the Inspector General of Police (CID) Shimla-2 and
High Court of H.P.
Chief Medical Officer, Deen Dyal Upadhyay Hospital, Shimla were
requested for verification of the characters and antecedents and
medical examination. It has also been averred that in the year
2006, the Government had taken a conscious decision to impart
induction training to the direct recruits and accordingly, the
Director, Himachal Pradesh Institute of Public Administration (in
short “HIPA”), Mashobra, Shimla was also requested on
11.12.2008 to fix the date for imparting induction
training/foundation course to the petitioners. The necessary
verification of character and antecedents and medical
examination of all the 15 selected candidates, including the
petitioners, was received by the replying respondent-Department
on 23.12.2008, but no response from the Director, HIPA was
received regarding fixing the dates for imparting induction
training, despite issuing two reminders to him. Therefore, the
matter was submitted to respondent No.1/appointing authority to
decide as to whether the petitioners may be sent to HIPA in the
first instance or are to be posted against the vacant posts of
Assistant Engineer (Civil) in the replying respondent-Department.
The competent authority directed to put up proposal for posting
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
16
against vacancies, which was received on 29.12.2008. Had there
High Court of H.P.
been any wrong intention of the replying respondent-
Department, as has been alleged, the matter would not have
been submitted before the appointing authority for deciding as to
whether the selected candidates are to be sent for induction
training in the first instance or they are to be appointed against
the vacancies. This clearly demonstrates that all codal formalities
had not been completed till 29.12.2008. However, since only two
days were left for closing of the year 2008 and without
conceding, even if proposal of posting that were yet to be
approved by the competent authority are considered to have
been approved and the letters of offer of appointment that were
yet to be sent were also considered to have been dispatched
through registered post giving them few days for
acceptance/joining on the terms and conditions, even then the
said registered post can only be said to be delivered to the
addressees after the expiry of minimum three days, by which
date, the new year of 2009 would have started/set in. Therefore,
under no circumstances the matter of offering appointment and
its acceptance could have been completed within the remaining
two days of the year 2008. Accordingly, after processing the
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
17
matter and completing all the formalities, the offer of
High Court of H.P.
appointment through registered letters were issued to the
petitioners on 09.01.2009 and they have been considered as
appointee of the year 2009 and assigned seniority accordingly.
14. The matter of filling up the newly created posts in
July and August, 2008 for Hamirpur Zone and Bilaspur Circle was
also going on simultaneously as the DPC was required to be
convened within a period of three months from the date of
creation of new posts in view of the Department of Personnel's
instructions dated 06.09.1984, which provide that for un-
anticipated vacancy, fresh meeting of the DPC for making
promotions should be held during the course of the year, within
three months from the date of creation of the posts. Since the
period of three months had already elapsed and the matter for
holding the DPC was already under process, therefore, promotion
orders were to be issued on or before 31.12.2008. It has further
been averred that the regular DPC for considering clear-cut as
well as resultant vacancies of Assistant Engineers (Civil) for the
year 2008 had already been convened in the month of March,
2008, and the promotion orders were also issued on 31.03.2008.
However, the necessity of convening another DPC in the year
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
18
2008 itself arose due to creation of I&PH Zone, Hamirpur and
High Court of H.P.
I&PH Circle, Bilaspur along with certain posts in July and August
2008. As a result of this, promotions of private respondents were
made in the year 2008. In this view of the matter, it cannot be
said that any illegality has been done by the replying respondents
in fixing the seniority and as such the petitioners have no cause
to challenge the present seniority.
15. It has also been averred that on the direction of this
Court in S.S. Kutlehria's case (supra), all the previous DPCs held
up to 27.04.1994 were reviewed by the Department and on the
basis of the minutes supplied by the Public Works Department,
replying respondents re-drew the seniority list of Assistant
Engineers (Civil) besides reviewing the DPC after 27.04.1994, the
date of bifurcation of the erstwhile Public Works Department
(B&R) and I&PH Department to 31.12.2008 and issued seniority
list of Assistant Engineers (Civil) vide Annexure P-11 which is
just, proper and legal. The seniority to the petitioners cannot be
granted from the date of recommendations made by the
Commission for appointment to the posts of Assistant Engineer
(Civil) for the reason that unless the said recommendations are
approved by the Government and offer of appointment is made
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
19
after completion of all codal formalities to the selected candidates
High Court of H.P.
and the said offer is accepted by them, relation of employee and
employer is not formed. In view of this, the question of granting
seniority to the petitioners from the date of their
recommendations does not at all arise and as such not tenable in
the eyes of law.
16. On merits, it has been averred that after the
judgment in S.S. Kutlehria's case (supra), the same number of
vacancies for the respective years and only incumbents from
AMIE category have been replaced by the incumbents from
University Graduate category and accordingly the seniority list
has been issued on 24.05.2011. It has also been averred that
respondent No.1-State considered 11 posts that were granted as
a measure of one-time relaxation by the Government in the year
1998 and accordingly, the minutes of the review DPC were again
reviewed w.e.f. 1998 to 2008. As such, another six incumbents
from University Graduate category found place in the year 2005
and 2006 and five incumbents from the AMIE category found
place in the year 2008. Accordingly, another seniority list of
Assistant Engineers (Civil) was issued on 23.09.2011. Due to
implementation of judgment in the cases of S.S. Kutlehria and
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
20
Ashok Kumar, there are nine incumbents belonging to AMIE
High Court of H.P.
category, who could not find place in the seniority list of Assistant
Engineers (Civil) for want of promotion as Assistant Engineer
(Civil) and as such their case of reversion is pending under
consideration of the Government.
17. It has been denied that respondent No.1-State has
assigned seniority to any direct recruit from the date of
recommendation of their names for appointment by the
Commission. Regarding the instructions of Department of
Personnel, it has been submitted that due to economy measures
adopted by the Government, no direct recruitment was made on
year-to-year basis. However, the number of posts falling in the
share of direct recruitment quota on vacancy basis as prescribed
in the R&P Rules for the post of Assistant Engineer (Civil) were
used to be given and get accumulated. However, after
amendment made in the R&P Rules in 2003, when the filling up
of vacancies was changed from vacancy basis to post basis, the
excess and shortfall in the category of direct recruits and
promotees was ascertained. The matter of filling up the posts of
Assistant Engineer (Civil) through direct recruitment was used to
be taken up with the Government for its approval and subject to
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
21
the approval of the Government from time to time. The posts of
High Court of H.P.
Assistant Engineers (Civil) were/are filled up in 2006 and 2009.
This goes on to show that direct recruitment posts are not filled
up regularly on year-to-year basis, whereas the posts falling in
the share of promotional quota are prescribed in the R&P Rules
have been/are being filled up regularly on year-to-year basis in
order to run the work of the Department. It has further been
averred that Diploma Holder Junior Engineer Association had
represented to the Government that they are languishing at the
post of Junior Engineer (Civil) only for the last more than 30
years and many are on the verge of retirement and still they are
waiting for their only chance of one promotion to the post of
Assistant Engineer (Civil). The Government considered their
representation and took a conscious decision to upgrade 27
number of posts of Junior Engineer (Civil) to the post of Assistant
Engineer (Civil) by abolishing the equal number of posts of Junior
Engineer (Civil), besides filling up the 19 internalized posts of
Assistant Engineers (Civil) by way of promotion from amongst
feeder categories. The upgraded posts of Assistant Engineer
(Civil) were required to be filled up from amongst the feeder
categories of Junior Engineer (Civil) only on the posts of Junior
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
22
Engineer (Civil) occupied by them which were upgraded to
High Court of H.P.
Assistant Engineer (Civil) by abolishing the said post of Junior
Engineer (Civil). Had these promotions not been done from the
feeder categories, there could have arisen a peculiar situation as
the incumbents holding the posts of Junior Engineers (Civil) that
were abolished for upgrading to the posts of Assistant Engineers
(Civil) would have remained without any post in the Department
and secondly, in order to redress their grievances of stagnation
and giving a chance of promotion. Besides this, there were 11
clear-cut/resultant vacancies, which were to be filled up by
incumbents of the category, who vacated the post due to
promotion/retirement. In view of this, 57 (27+19+11) vacancies
were available for making promotion to the posts of Assistant
Engineers (Civil) and the same were made in accordance with the
percentage of quota as prescribed for the respective feeder
categories in the R&P Rules. Thus, 57 incumbents were promoted
to the posts of Assistant Engineers (Civil) on 31.03.2008 (wrongly
mentioned as 31.03.2012). However, it has been averred that the
cadre strength was again maintained in the year 2009 while
making promotions subsequently on 04.06.2009 as per the
percentage of quota prescribed in the R&P Rules of Assistant
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
23
Engineer (Civil). Further, it has been averred that since I&PH
High Court of H.P.
Zone, Hamirpur and I&PH Circle, Bilaspur were created in
July/August 2008, therefore, 12 posts (04 created posts of
Assistant Engineers (Civil) and remaining 08 posts arisen due to
resultant vacancies by promotion of EE/SE/Chief Engineer) were
required to be filled up by way of promotion through direct
recruitment. Out of 04 newly created posts of Assistant Engineer
(Civil), 01 post was given to direct recruitment quota as per the
percentage of quota prescribed in the R&P Rules and promotion
of 12 posts incumbents were made. Since no direct recruitment
was taking place regularly on year-to-year basis, therefore, the
vacancies under the direct recruitment quota remained
unfilled/vacant and used to be kept vacant and accumulated with
passing of each year. Therefore, it is wrong to contend that the
replying respondent-Department made any promotion in excess
of their percentage of quota as prescribed in the R&P Rules and
as such, prayed for dismissal of the writ petition.
18. The petitioners filed rejoinder to the reply filed by
respondents No.1 and 2 and controverted the averments made
therein.
19. I have heard the learned counsel for the parties and
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
24
also perused the record carefully.
High Court of H.P.
20. Learned senior counsel representing the petitioners
had contended that since the Commission had advertised the
posts in the month of April 2008 and further had recommended
the names of the petitioners for appointment to the posts of
Assistant Engineer (Civil) on 04.11.2008, even if the respondents
had delayed the process to offer them appointment, they have to
be considered as recruits of the year 2008 in view of the fact that
respondent No.1-State could not have filled up more posts than
the quota allocated to the promotees and further they have to be
assigned seniority as per the roster for filling up the posts by
direct recruitment and by promotion as per Notification dated
25.02.2005. He further contended that since the requisition was
sent by the respondent-State to the Commission to fill up 15
posts of Assistant Engineer (Civil), the respondent-State could not
have filled up more than 45 posts by way of promotion. However,
in the present case, the respondent-State, despite the
recommendations of the petitioners to be offered appointment as
Assistant Engineer (Civil), purposely delayed their appointment
and appointed private respondents by way of promotion. He
further argued that even if the petitioners have been offered
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
25
appointment on 09.01.2009, as per the rota-quota Rule, they
High Court of H.P.
have to be assigned seniority of the year 2008, as per the
instructions issued by the Department of Personnel.
21. On the other hand, learned Deputy Advocate General
had vehemently argued that since the petitioners were not
offered appointment in the year 2008 and further, they have been
issued the appointment orders, vide Notification dated
09.01.2009, they cannot be assigned seniority above to the
promotees, who admittedly have been promoted and joined their
service before them.
22. Learned counsel representing the private respondents
had also made similar submissions and argued that since the
private respondents have been promoted earlier to offering the
appointment to the petitioners, hence they cannot be assigned
seniority below the direct recruits.
23. Learned senior counsel for the petitioners had placed
reliance upon the judgments of the Hon'ble Supreme Court in
S.G. Jaisinghani vs. Union of India and others, AIR 1967 SC
1427; V.B. Badami etc. etc. vs. State of Mysore and others, AIR
1980 SC 1561; Keshav Chandra Joshi and others vs. Union of
India and others, 1992 Supp (1) SCC 272; Union of India and
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
26
others vs. N.R. Parmar and others a/w connected matters, (2012)
High Court of H.P.
13 SCC 340; I.A. No.230675 of 2025 in Writ Petition (Civil)
No.1022 of 1989, All India Judges Association and others vs.
Union of India and others, 2025 INSC 1328; Hariharan and others
vs. Harsh Vardhan Singh Rao and others, 2022 SCC OnLine SC
1717 and contended that since the petitioners have been
recruited in the year 2008, they are to be placed against their
respective annual roster points regardless of the actual date of
appointment.
24. On the other hand, learned Deputy Advocate General
representing the respondents-State and the private respondents
had placed reliance upon the judgment passed by a three-Judge
Bench of the Hon’ble Supreme Court in K. Meghachandra Singh
and others vs. Ningam Siro and others, (2020) 5 SCC 689 and
another judgment passed in Civil Appeal No.862 of 2026 (arising
out of S.L.P.(C) No.8374 of 2025), titled, M. Thanigivelu and
others vs. Tamil Nadu Electricity Board and others a/w connected
matters and contended that the seniority cannot be assigned
before entry in the service and as such the petitioners do not
have any claim in the matter.
25. I have given my thoughtful consideration to the
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
27
submissions made at the Bar and of the considered view that the
High Court of H.P.
petitioners, who are direct recruits as Assistant Engineer (Civil)
are entitled to seniority in the recruitment year of 2008, when the
requisition was sent and advertisement was made as per the
roster prescribed in the Notification dated 25.02.2005.
26. It is not in dispute that the requisition was made by
the respondent-Department to fill up 15 number of posts of
Assistant Engineers (Civil) by direct recruitment and
advertisement was issued by the Commission in the month of
April, 2008. The Commission had recommended the petitioners
for appointment to the posts of Assistant Engineers (Civil) on
04.11.2008. It is also not in dispute that the approval was
granted by the respondent-State on 25.11.2008 and thereafter
the medical examination of the petitioners was conducted before
19.12.2008. As per the R&P Rules for filling up the posts of
Assistant Engineer (Civil), 25% by direct recruitment and 75% by
promotion from amongst the Junior Engineer (Civil) and
Draughtsman Cadre. By promotion from amongst Junior
Engineer (Civil), further quota has been fixed. The roster for
filling up of the posts by direct recruitment and by promotion has
been provided so that whenever, recruitment is made, the
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
28
seniority is assigned as per the roster.
High Court of H.P.
27. As per the reply filed by the respondents, a stand has
been taken that on the representation made by the Junior
Engineers (Civil), who were not getting any promotion for more
than 30 years and many of them were on the verge of
retirement, the Government had taken a conscious decision to
upgrade 27 number of posts of Junior Engineer (Civil) to the post
of Assistant Engineer (Civil) by abolishing the equal number of
posts of Junior Engineer (Civil), besides filling up 19 internalized
posts of Assistant Engineer (Civil) by way of promotion from
amongst the feeder categories. If the respondents had upgraded
the posts of Junior Engineer (Civil) to the post of Assistant
Engineer (Civil), the same could not have been filled up in the
year 2008 itself and if the same were filled up, the petitioners,
who were recommended for their appointment as Assistant
Engineer (Civil) as direct recruit in the process initiated in the
month of April, 2008, their interest cannot be jeopardized only for
the reason that some of the posts of Junior Engineer (Civil) were
upgraded to the posts of Assistant Engineer (Civil) and further to
ignore the quota rule and also the roster for filling up the posts
by direct recruitment and by promotion.
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
29
28. The precise grievance of the petitioners is only that
High Court of H.P.
once the process was started for filling up the posts of Assistant
Engineer (Civil) in the month of April 2008 by direct recruitment
and further the names of the petitioners were recommended by
the Commission on 04.11.2008, they ought to have been offered
appointment during that year and in case they have been offered
appointment on 09.01.2009, they have to be considered as
appointee of 2008 and are to be assigned their seniority as per
the roster point in the recruitment year when the process was
initiated as per the Rules in view of the law laid down by the
Constitution Bench of the Hon'ble Supreme Court in S.G.
Jaisinghani’s case (supra), wherein it has been held that as per
the rule of quota, the persons, who are appointed as direct
recruit have to be assigned the seniority as per their quota and
not doing so violates the provisions of the Constitution. Relevant
paragraphs of the judgment reads as under:
“(11) In regard to rule 1 (f) (iv) of the Seniority
Rules, there are only three respondents i.e., respondents 4,
5 and 6 who have been promoted as “deemed promotees”
under this clause of the rule. Each one of them was
appointed in Class II, Grade III Service in 1947 and was
appointed in Class I, Grade II Service in 1951 after having
successfully competed in the competitive examination of the
year 1950, the same year in which the appellant was
successful. The appellant also joined Class I, Grade II
Service in 1951. The three respondents have been shown
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
30
as senior to the appellant in the seniority list. The objection
of the appellant is that while they qualified in the same
competitive examination, they had become senior to him
because of the operation of the artificial rule by which they
are treated as “deemed promotees”; otherwise they would
have remained junior to him. On behalf of these
respondents, it was argued by Mr. Bindra that they had
been appointed to Class II, Grade III Service in 1947 and
completed 5 years' service in that class by the year 1952
and if the Departmental Promotion Committee met in 1953,
as actually did meet, and if it recommended their promotion
to Class I, Grade II, each one of them would have become
senior to the appellant by the operation of C1. (iii) to rule
1(f). There was also the further consideration that if rule 1
(f) (iv) did not exist there was no incentive to a promotee
of this type to sit for the competitive examination. It should
also be taken into account that if the service of the
promotees in Class II Grade III is entirely ignored and if
they join the Class I, Grade II Service as direct recruits they
might well find themselves becoming junior to those who
were left behind in Class II, Grade III Service by the
operation of rule 1 (f) (iii). We are accordingly of the
opinion that rule 1 (f) (iv) is based on a reasonable
classification and does not offend the guarantee under Art.
14 or Art. 16 (1) of the Constitution.
High Court of H.P.
(12) We proceed to consider the next question
arising for consideration in this appeal, viz., the allegation of
the appellant that there was excessive recruitment of
promotees in violation of the quota rule. Rule 3 of the
Income-tax Officers (Class I, Grade II) Service Recruitment
Rules is to the following effect:
"The Service shall be recruited by the foll
owing
methods:
(i) By competitive examination held in India in
accordance with Part II of these Rules.
(ii) By promotion on the basis of selection from
Grade III (Class II Service) in accordance with Part III of
these Rules.
Rule 4 reads:
“Subject to the provisions of Rule 3, Government
shall determine the method or methods to be employed for
the purpose of filling any particular vacancies, or such
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
31
vacancies as may require to be filled during any particular
period, and the number of candidates to be recruited by
each method.
High Court of H.P.
”Rule 5 states:
"Vacancies in the Service which are filled otherwise
than by promotion shall be apportioned between the
various communities in India in accordance with the
provisions of the Government of India (Home Department)
Resolution No. F. 14/17-B/33-Ests. dated the 4th July, 1934
(regarding communal representation in the services) and
No. 23/5/42-Ests. (S) dated the 11th August, 1943
(regarding representation of Scheduled Castes in the
Services) and the supplementary instructions connected
therewith.
"In the letter of the Government of India dated September
29, 1944 (Ex. B to the writ petition of the appellant) it is
stated that the recruitment to Grade II of Class I will be
made partly by promotion and partly by direct recruitment
and that “80 per cent of the vacancies arising in the Grade
will be filled by direct recruitment through the Indian Audit
and Allied Services Examination and the remaining 20 per
cent vacancies will be filled on the basis of promotion by
selection provided suitable number of men are available for
promotion.” It was also stated in the letter that if there are
any vacancies which could not be filled by promotion for
want of suitable candidates, these will be added to the
quota of vacancies to be filled by direct recruitment. The
quota was altered by the Government of India subsequently
in their letter dated October 18, 1951 (Ex. E to the writ
petition). In this letter the Government of India said that
they had decided in consultation with the Union Public
Service Commission that for a period of five years, in the
first instance, 66-2/3 per cent vacancies in Class I, Grade II
will be filled by direct recruitments and the remaining 33-
1/3 per cent vacancies on the basis of promotion and any
surplus vacancies which cannot be filled for want of suitable
candidates will be added to the quota of vacancies to be
filled by direct recruitment. There has been no argument, in
this case, with regard to the operation of the rule between
the years 1945 and 1950, though in the petition the
appellant has alleged that in those years also there were
excessive recruitments of promotees. It appears from the
affidavit of respondent No. 1 that these were formative
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
32
years of the Income-tax Service and reorganization of the
Department was being completed and the initial period of
re-organisation lasted uptil 1950. The argument was
confined to the years 1951 to 1956. According to the
appellant, there was excessive recruitment of 71 promotees
more than the figure permitted by the quota rule. In the
judgment under appeal the High Court has examined the
matter and found that the excess number of promotees was
31 for the four years 1951 to 1954. During the hearing of
the appeal we had ordered the Secretary of the Finance
Ministry to furnish the number of vacancies which had
arisen from year to year from 1945 onwards, the nature of
the vacancies—permanent or temporary and the chain of
vacancies and such other details which are relevant to the
matters pending before this Court. In his affidavit dated
January 31, 1967 Mr. R. C. Dutt said that he was not able to
work out, in spite of his best endeavours, the number of
vacancies arising in a particular year. However, a statement,
Ex. E, was furnished showing the number of officers
recruited by the two methods of recruitment to Class I
service during the relevant years:
High Court of H.P.
Year UPSC Exam.
War
Service
candidate
Officers
selected
from Class
re-cruits
s
II
1951 . . . 50 ... ...
1952 . . ... 2 49
1953 . . . 52 ... 38
1954 . . . 44 ... 30
1955 . . . 45 ... 24
1956 . . . ... ... 25
It is not clear from the affidavit of Mr. R. C. Dutt whether
the quota rule was strictly followed for the years in
question. In the counter-affidavits of respondents 1 to 4 in
Writ Petition No. 5 of 1966 there is however an assertion
that the quota rule "has been substantially complied with."
(13) The Solicitor-General on benefit respondents 1,
2 and 3 submitted that the quota rule was merely an
administrative direction to determine recruitment from two
different sources in the proportion stated in the rule and a
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
33
breach of that quota rule was not a justiciable issue. The
Solicitor-General said that there was, however, substantial
compliance with the quota rule. But in the absence of
figures of permanent vacancies in Class I, Grade II for the
relevant years the Solicitor-General was unable to say to
what extent there had been deviation from the rule. We are
unable to accept the argument of the Solicitor-General that
the quota rule was not legally binding on the Government.
It is not disputed that rule 4 of the Income-tax Officers
(Class I, Grade II) Service Recruitment Rules is a statutory
rule and there is a statutory duty cast on the Government
under this rule to determine the method or methods to be
employed for the purpose of filling the vacancies and the
number of candidates to be recruited by each method. In
the letter of the Government of India dated October 18,
1951 there is no specific reference to rule 4, but the quota
fixed in their letter must be deemed to have been fixed by
the Government of India in exercise of the statutory power
given under rule 4. Having fixed the quota in that letter
under rule 4, it is not now open to the Government of India
to say that it is not incumbent upon it to follow the quota
for each year and it is open to it to alter the quota on
account of the particular situation (See para 24 of the
counter affidavit of respondents 1 to 3 in Writ Petition No. 5
of 1966). We are of opinion that having fixed the quota in
exercise of their power under rule 4 between the two
sources of recruitment, there is no discretion left with the
Government of India to alter that quota according to the
exigencies of the situation or to deviate from the quota, in
any particular year, at its own will and pleasure. As we have
already indicated, the quota rule is linked up with the
seniority rule and unless the quota rule is strictly observed
in practice, it will be difficult to hold that the seniority rule
i.e., rule 1 (f) (iii) and (iv), is not unreasonable and does
not offend Art. 16 of the Constitution. We are accordingly of
the opinion that promotes from Class II, Grade III to Class
I, Grade II Service in excess of the prescribed quotas for
each of the years 1951 to 1956 and onwards have been
illegally promoted and the appellant is entitled to a writ in
the nature of mandamus commanding respondents No.1 to
3 to adjust the seniority of the appellant and other officers
similarly placed like him and to prepare a fresh seniority list
in accordance with law after adjusting the recruitment for
High Court of H.P.
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
34
the period 1951 to 1956 and onwards in accordance with
the quota rule prescribed in the letter of the Government of
India No.F. 24(2). Admn. I. T./51 dated October 18, 1951.
We, however, wish to make it clear that this order will not
affect such Class II Officers who have been appointed
permanently as Assistant Commissioners of Income-tax. But
this order will apply to all other officers including those who
have been appointed Assistant Commissioners of Income-
tax provisionally pursuant to the orders of the High Court.
High Court of H.P.
(14) In this context it is important to emphasize that
the absence of arbitrary power is the first essential of the
rule of law upon which our whole constitutional system is
based. In a system governed by rule of law, discretion,
when conferred upon executive authorities, must be
confined within clearly defined limits. The rule of law from
this point of view means that decisions should be made by
the application of known principles and rules and, in
general, such decisions should be predictable and the
citizen should know where he is. If a decision is taken
without any principle or without any rule it is unpredictable
and such a decision is the antithesis of a decision taken in
accordance with the rule of law. (See Dicey — "Law of the
Constitution" — Tenth Edn., Introduction ex). "Law has
reached its finest moments," stated Douglas, J. in United
States v. Wunderlich, (1951) 342 US 98, "when it has freed
man from the unlimited discretion of some ruler. Where
discretion is absolute, man has always suffered". It is in this
sense that the rule of law may be said to be the sworn
enemy of caprice. Discretion, as Lord Mansfield stated it in
classic terms in the case of John Wilkes, (1770) 4 Burr 2528
at p. 2539 "means sound discretion guided by law. It must
be governed by rule, not by humour: it must not be
arbitrary, vague, and fanciful.”
29. In the present case, once the R&P Rules provide
rota-quota for making promotion and roster has been prepared,
the respondent-State could though have made promotions, but
the petitioners are to be assigned the seniority as per the roster
in the R&P Rules and not doing so, it has acted arbitrarily, which
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
35
offends Articles 14 and 16 of the Constitution of India. If the
High Court of H.P.
respondent-State had to assign seniority as per the date of
joining the Department by the Assistant Engineers (Civil)
irrespective of their source of recruitment, then the very purpose
of fixing the rota-quota in the R&P Rules is frustrated and further
is of no use. No doubt, an employee gets the seniority only from
the date of joining the Department, but where the R&P Rules
provide the ratio of recruitment by direct mode and promotion,
the excess quota of seats if filled up cannot be assigned the
seniority above another quota.
30. In V.B. Badami’s case (supra) a three-Judge Bench of
the Hon’ble Supreme Court has held that if the promotions are
made to vacancies in excess of the promotional quota, the
promotees cannot claim any right to hold the promotional posts
unless the vacancies fall within their quota. Further, it has been
held that when the quota was fixed for the two sources of
recruitment, the quota could not be altered according to
exigencies of the situation.
31. A Constitution Bench of the Hon’ble Supreme Court
in All India Judges Association’s case (supra) has also considered
the similar proposition and after considering the judgment passed
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
36
in N.R. Parmar and K. Meghachandra Singh cases (supra), has
High Court of H.P.
held that when the process of recruitment of direct recruits is
completed within the same recruitment year, yet an adequate
number of candidates could not be selected, in such
circumstances, the shortfall must be carried forward to the
succeeding recruitment year and the candidates selected against
such carried forward vacancies are required to be placed en-bloc
below the promotees of the earlier years and unless this
procedure is adhered to, the rotation of the quota system stands
frustrated. It has also been held that if the recruitment process
from any source is not completed in the year in which it began,
but appointments are made before the end of the following year,
those appointees shall be placed at their respective roster points
for the year of initiation. The relevant paras of the judgment
reads as under:
“76. In Hariharan, attention was drawn to the anomaly
arising when the process of recruitment of direct recruits is
completed within the same recruitment year, yet an
adequate number of candidates could not be selected. It
was observed that in such circumstances, the shortfall must
be carried forward to the succeeding recruitment year.
Consequently, candidates selected against such carried-
forward vacancies are required to be placed en bloc below
the Promotees of the earlier years. Unless this procedure is
adhered to, the rotation of the quota system stands
frustrated.
77. The reference was thus only with respect to the
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
37
selections made from different sources, based on a ratio
applied to the cadre, to vacancies arising in a recruitment
year.
78. While this particular issue remains pending in the
abovementioned reference, in our view, keeping in mind the
most celebrated principle of assigning seniority on the basis
of the period of continuous service while also
acknowledging the almost inevitable incidence of
speedbumps, the model delineated hereinafter for the
purposes of HJS would be most appropriate.
79. If the recruitment process from any source is not
completed in the year in which it began, but appointments
are made before the end of the following year, those
appointees shall be placed at their respective roster points
for the year of initiation. Provided that no appointments
from any source are made for the next recruitment year
before these appointments are effected.
80. To illustrate, let us consider that the recruitment
process from all three sources is initiated in Year A. the
procedures for appointment of LDCEs and RPs are
completed within the same year A, and they are placed in
the Annual Roster for Year A. However, a variety of issues
cause the appointments of DRs to happen only in Year A+1.
Now, these DRs, although appointed in Year A+1, would be
permitted to also take their positions within the roster for
Year A, as long as they were appointed prior to the LDCEs,
RPs, and DRs whose recruitment is initiated in Year A+1.
81. Barring the above exception, we affirm that the
continuous length of service ought to be the criterion for
determining inter se seniority in the HJS, subject to the
further condition that all appointees in a single recruitment
year are placed against their respective annual roster
points, regardless of the actual date of appointment.
82. The above mechanism, in our opinion, serves to
mitigate the grievances and preserve the seniority of an
appointee who was subsequently borne in service only due
to the vagaries of the recruitment process. In the same
vein, the officers appointed earlier also cannot be
aggrieved, as they would be adjusted within the roster only
along with their relative contemporaries in the service and
would be put on notice regarding the concluded.
83. If the High Court, for any valid reason, decides not to
initiate the recruitment process from any of the three
High Court of H.P.
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
38
sources in a given year, the person subsequently appointed
from those sources shall not be eligible to be placed within
the roster for that year in which recruitment form the
source did not take place.
84. We are at the same time also cognizant of the necessity
of ensuring that vacancies in the judicial services do not
remain unfilled, the negative consequences of which have
been very cogently addressed by this Court in Mazhar Malik
Sultan. To this end, this Court in the Sixth AIJA, has already
provided that unfilled vacancies within the LDCE quota may
be diverted and filled by RPs.
85. In our considered opinion, the above system can also
be extended to the vacancies that remain unfilled after the
process of direct recruitment is completed. To explicate,
when some of the vacancies pertaining to DRs or LDCEs in
a particular year are not filled up due to non-availability of
suitable candidates from these sources, despite the
recruitment process being taken to its conclusion, the
positions which remain vacant for want of candidates shall
be filled up in the same recruitment year through regular
promotion from the cadre of Civil Judge (Senior Division) as
per the applicable rules.
86. In such a scenario, the candidates who are ordinarily
selected from the three sources are assigned seniority on
induction to the HJS as per the Annual Roster in the regular
manner. The remaining RPs, who are promoted in the
vacancies from the other sources, would also be entitled to
be placed in the same roster, but they would only occupy
the subsequent positions for RPs, i.e., this diversion does
not grant the roster position of LDCEs or DRs to these RPs.
In the subsequent recruitment year, the ratio of 50:25:25
should guide the computation of vacancies to be filled from
each source. This would be a continuing exercise of
applying the roster points on the candidates selected in
each recruitment year, while the ratio is applied to the
cadre, for determining the vacancies arising in a subsequent
year.”
High Court of H.P.
32. A perusal of the aforesaid judgment clearly depicts
that the persons, who are recruited as direct recruits have to be
placed as per the annual roster points and in the present case,
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
39
once the respondent-State had initiated the process for
High Court of H.P.
recruitment as Assistant Engineer (Civil) as direct recruit in the
month of April, 2008, even if the process was delayed, after their
appointment, they have to be assigned seniority as per the roster
point fixed and in case it is not done so, the very purpose of
fixing the rota-quota as prescribed in the R&P Rules would be
frustrated and further, the petitioners, who were recommended
for appointment on 04.11.2008, will be deprived of their right of
seniority and further consideration in future for promotion to the
higher post as per the R&P Rules.
33. The Hon'ble Supreme Court has time and again held
that the seniority has to be maintained as per the R&P Rules. In
the present case, since the respondent-State had upgraded the
posts of Junior Engineer (Civil), no doubt the State Government
had the power to fill up those posts, but the petitioners, for
whom the recruitment process was started in the month of April
2008, cannot be denied their seniority over and above the
persons who have been recruited more than the quota prescribed
to them and further also to ignore the roster. The petitioners
have to be assigned seniority as per the roster in the R&P Rules
and since the respondent-State, while issuing the seniority list,
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
40
has not adhered to the roster as prescribed in the R&P Rules, it
High Court of H.P.
has violated the fundamental rights of the petitioners and the
same is violative of Articles 14 and 16 of the Constitution of
India.
34. Learned Deputy Advocate General and learned
counsel for the private respondents had vehemently argued that
since the petitioners were not borne in the cadre, they cannot be
assigned seniority above the private respondents. However, the
said contention cannot be accepted in view of the authoritative
pronouncements of the Hon'ble Supreme Court in the
aforementioned judgments, which clearly stipulates that the
direct recruits have to be fitted in the roster as per rota-quota
system as per the vacancies and their position and in the present
case, since the respondent-State has not adhered to the said
procedure, there is infraction of Articles 14 and 16 of the
Constitution of India.
35. The judgment passed by the Hon’ble Supreme Court
in M. Thanigivelu’s case (supra), which was relied upon by the
learned counsel for the respondents is not attracted to the
present case, for the reason that in this case the Court has
considered the Regulations, which provide that the seniority is to
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
41
be counted from the placement of a candidate in the merit list,
High Court of H.P.
which is prepared at the time when recruitment takes place. In
the present case, the R&P Rules prescribe the roster for making
promotion and assigning seniority which fact has not be disputed
by the respondent-State and the private respondents. Once the
roster point has been provided in the R&P Rules to assign
seniority to Assistant Engineer (Civil) appointed by direct
recruitment and by promotion as per their quota, the petitioners
whose process was initiated in the month of April 2008 and
recommendations were made by the Commission on 04.11.2008,
the private respondents who have been appointed earlier to the
petitioners cannot be assigned the seniority dehorse the roster
point in the R&P Rules which action is arbitrary and
discriminatory. The respondent-State had made the promotions of
some of the private respondents as per the recommendations of
the DPC convened on 30.12.2008 which as per the respondents
were not within three months from creation of I&PH Zone,
Hamirpur and I&PH Circle Bilaspur. Once the appointment of the
petitioners was approved on 25.11.2008 and further their medical
and verification of characters and antecedents were also done on
23.12.2008, the respondent-State ought to have offerred them
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
42
appointment before making promotion of the private respondents
High Court of H.P.
on 31.12.2008. In doing so, it has acted arbitrarily.
36. In H.V Pardasani and others vs. Union of India and
others, (1985) 2 SCC 468, a three-Judge Bench of the Supreme
Court has held that in the absence of any special provision
regulating determination of seniority, length of continuous service
in any particular grade would be the basis for determining
seniority in the grade. But in the present case, since there is a
provision of making selection of Assistant Engineer (Civil) as per
the roster from direct recruitment and promotion, the seniority
has to be assigned strictly as per the roster.
37. The plea taken by the respondent-State that the
posts of Assistant Engineer (Civil) were not being filled up on
year-to-year basis due to economy measure can be accepted if
equal number of posts by way of promotions were kept vacant as
per the ratio prescribed in the R&P Rules. If the persons who
were working as Junior Engineers (Civil) can be promoted to the
posts of Assistant Engineer (Civil), equal number of posts as per
the ratio in the R&P Rules have to be filled up by way of direct
recruitment to respect the roster, more particularly when the
direct recruits were available on the date of promotion.
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
43
38. Another plea taken by the respondent-State that the
High Court of H.P.
Government took a conscious decision to upgrade 27 number of
posts of Junior Engineer (Civil) to the posts Assistant Engineer
(Civil) by abolishing the equal number of posts of Junior Engineer
(Civil) besides filling up the 19 internalized posts of Assistant
Engineer (Civil) by way of promotion from amongst feeding
categories is concerned, as already noticed above, the upgraded
posts if filled up can not be more than the quota of the vacancy
falling to the share of Junior Engineer (Civil) and further, they had
to be assigned the seniority below the petitioners as per the
roster point in the R&P Rules. In case the roster is not adhered to
and respected, the same would amount to arbitrary action on the
part of the respondent-State and further the very purpose of
prescribing the roster in the R&P Rules is frustrated.
39. Consequently, the present petition is allowed and the
impugned memoranda dated 25.05.2011 (Annexure P-10) and
dated 24.05.2011 (Annexure P-11) are quashed and set aside
and the respondent-State is directed to assign seniority to the
petitioners as per the roster, as prescribed under the Himachal
Pradesh, Department of Irrigation and Public Health, Assistant
Engineer (Civil) Class-I (Gazetted) Technical Services,
::: Downloaded on - 30/10/2026 17:51:23 :::CIS
44
Recruitment and Promotion (third amendment) Rules, 2005
High Court of H.P.
notified on 25.02.2005 with all consequential benefits.
40. The petition is accordingly disposed of. No order as to
costs. Pending application(s), if any, also stands disposed of.
th
30 October, 2026 ( Jiya Lal Bhardwaj )
(ankit) Judge
::: Downloaded on - 30/10/2026 17:51:23 :::CIS