1. Being aggrieved and dissatisfied with order dated 10.11.2020, (Annexure P-12), whereby representations filed by petitioners and other similarly situate persons, thereby requesting respondent-Department not to assign revised seniority to respondent No. 4 and place his name above them, came to be dismissed and respondent No. 4 has been assigned seniority with effect from 16.11.2009, petitioners have approached this court in the instant proceedings, filed under Art. 226 of the Constitution of India, praying therein for the following reliefs:

"i) That this Hon'ble Court may kindly issue writ of certiorari quashing order dated 10.11.2020 (Annexure P-12), whereby the respondent No. 4 has been ordered to be granted seniority in HPPS cadre w.e.f. 16.11.2009 to 24.11.2013 on notional basis and from 25.11.2013 on actual basis.

ii) That this Hon'ble Court may further be pleased to issue writ of mandamus directing the respondents not to implement order dated 10.11.2020 and change the seniorities of the petitioners and the respondent No. 4 in the Civil List of Police showing the respondent No. 4 senior to the petitioners.

iii) That this Hon'ble Court may be further pleased to issue writ of mandamus directing the respondents not to hold DPC to the to the post of Additional Superintendent of Police on the basis of order dated 10.11.2020 whereby the respondent NO. 4 has been ordered to be placed above to the petitioners and in case any promotion to the post of Additional Superintendent of Police is to be done then the same may be done strictly in terms of the Civil List of Police 2020 as on 31.3.2020."

2. For having bird's eye view of the matter, facts relevant for adjudication of case are that, a joint competitive examination i.e. Himachal Pradesh Administrative Services examination-2007 was held, final result of which was declared in the year 2009. Break-up of the posts proposed to be filled up through aforesaid examination is as under:

"1. Himachal Pradesh Administrative Services (in short HAS) = 4 posts (1 reserved for SC category, 1 post reserved for physically handicapped and 2 posts for general category (unreserved)

2. Himachal Pradesh Police Service (HPPS) 1 post reserved for SC category."

3. In addition to aforesaid posts of HPAS and HPPS, other posts of Tehsildar, BDO and DFC etc. were also to be filled up on the basis of HPAS Examination-2007. Respondent No. 4 alongwith other eligible candidates, participated in the aforesaid examination and respondent Commission, on the basis of written as well as interview drew a merit list, as under:

Sr. No.	Category	Category	Services
1	Vikram Mahajan	Gen	HAS
2	Sachin Kanwal	SC	HAS
3	Kapil Tomar	SC	HPS
4	Ashwani Kumar	Gen	HAS
5	Jitender Kumar	Gen	DFSC
6	Laxman Singh	Gen	DFSC
7	Dushyant Sarpal	SC	BDO
8	Bhupender Kumar	Physical Handicap	HAS
9	Naresh Kumar	Gen	Tehsildar
10	Munish Kumar	Gen	BDO
11	Sanjeet Kumar	Gen	BDO

4. Reply filed by respondent Nos. 1 to 3 reveals that though candidate namely Mr. Sachin Kanwal, (SC candidate) was second in overall merit, as such, should have been appointed in HPAS cadre against general category, and Mr. Kapil Tomar, belonging to SC category was third in merit, he should have been appointed as HPAS against reserved category of scheduled caste. Had above named Kapil Tomar, belonging to SC category been appointed to HPAS, against reserved category, respondent No. 4 would have become entitled for allotment of HPPS cadre in place of Mr. Kapil Tomar. However, for the reasons best known to respondent-State and Public Service Commission, Mr. Sachin Kanwal, belonging to Scheduled Caste category was not appointed in HPPS cadre against general category, rather, he was appointed as HPAS under SC category, as a result thereof, Mr.Kapil Tomar belonging to SC category came to be allotted HPPS cadre, as a result thereof, respondent No. 4, who admittedly was next in merit to person namely Mr. Kapil Tomar (in SC Category) was offered post of Block Development Officer.

5. Though, it has been claimed on behalf of respondent No. 4 that, immediately after declaration of result, he had made representation to the Department concerned, to allot him HPPS cadre but at that time, he was told that allotment would be revised subsequent to decision of CWP No. 1817 of 2018, Ashwani Kumar and another v. State of H.P. & others, pending adjudication before this court, however, representation, if any, made at that time, is not on record.

6. Mr. Kapil Tomar, who had appeared in 2007 HPAS examination, was allotted HPPS cadre vide Notification dated 16.11.2009 issued by Department of Home, and joined as HPPS on 27.11.2009 as is evident from Form TR-I (Annexure P-2). However, Mr. Kapil Tomar, after having joined Himachal Pradesh Police Services, applied for repatriation to his parent department i.e. Treasury and Accounts, which prayer was accepted by Department of Home and he was relieved on 3.6.2010 by the Department of Home, further relieved by the office of Director-General of Police on 19.6.2010 (Annexure P-3).

7. After vacation of one post of HPPS filled up on the basis of 2007 HPAS examination, respondent No. 4-Dushyant Sarpal, made a representation on 23.8.2011 (Annexure P-4), praying therein for his appointment in place of Mr.Kapil Tomar, in HPPS cadre. Since no decision was ever taken on the aforesaid representation by the department concerned, respondent No. 4 made few other representations on 16.12.2011, 5.4.2012 and 30.1.2013.

8. Pleadings as well as documents made available to this court reveal that after receipt of aforesaid representation, Department took up the matter with Himachal Pradesh Public Service Commission, which, while making certain observations also raised certain queries, which came to be clarified/answered by Department of Home, Government of Himachal Pradesh vide communication dated 3.10.2013 (Annexure R-1 of reply filed by respondents Nos. 1 to 3), which reads as under:

"I am directed to refer to your letter No. 3-26/2007-PSC(E)-II dated 21.8.2013 on the subject cited above and t clarify the position as under:

1. A requisition vide this department letter No. Home-D-B(2)-2/2008 dated 5.01.2011 to fill up 4 posts of HPPS (Gen.02, SC-01 & ST-01) was sent to H.P. Public Service Commission.

Out of above 4 posts, one post meant for SC category was one vacated by Sh. Kapil Tomar on his repatriation to his parent deptt. i.e. Treasury & Accounts. Accordingly, in response to above requisition dated 5.1.2011, HPPSC, made recommendation of a candidates, one of whom is Sh. Vikas Dhiman appointed against said post of SC category. Requisition was sent to the Commission before consideration of representation of Sh. Dushayant Sarpal. As such, the post of Sh. Kapil Tomar stands filled up.

Vide letter No. Home-D-B(2)-3/2011 datd 9.1.2012, a requisition to fill up 4 posts of HPPS (Gen.03 & OBC-01) sent to HPPSC. In response to said requisition, HPPSC has recently recommended 4 candidates.

2. At this stage, record does not reveal as to why, within a year, a request to HPPSC for replacement of the post vacated by Sh. Tomar was not made. However, it may be clarified that Sh. Tomar had joined the post of HPPS on 27.11.2009 and left the post on 3.6.2010 i.e. he has worked as HPPS for more than six months, therefore, the matter remained under examination at Govt. level in consultation with the advisory departments, until it was decided by the Govt. to fill up vacancy by considering the candidature of Sh. Dushyant Sarpal.

3. A requisition to fill up 4 posts (Gen.01, SC-02 & ST-01) has been sent to the HPPSC vide this department letter No. Home-D-B(2)-3/2011 dated 23.01.2013. Except these two posts meant for SC category, no other post is lying vacant in the HPPS cadre. Therefore, it has been decided to consider the case of Sh. Dushayant Sarpal against one of these post and consequently one post is hereby withdrawn and hence recruitment may now be made only against three posts. It is, therefore, requested to recommend the name of Sh. Dushyant Sarpal against the said withdrawn post."

9. After receipt of aforesaid communication, respondent Commission, vide undated communication No. 3-26/2007-PSC(E)Vol.-II (Annexure P-5), recommended name of respondent No. 4 for appointment in HPPS against the post proposed to be advertised through HPAS Examination-2012 but with condition that seniority to respondent No. 4 will be given from the date of joining the post. While making aforesaid recommendation, Public Service Commission stated that next candidate in order of merit, will be recommended after respondent No. 4 vacates the post of Block Development Officer.

10. Vide Notification dated 14.11.2013, (Annexure P-6), Her Excellency, the Governor, Himachal Pradesh, in exercise of power vested in her under rule 15 of Himachal Pradesh Police Rules 1973, appointed respondent No. 4 to Himachal Pradesh Police Service, on probation with effect from date of his joining. It came to be clarified while issuing aforesaid Notification that seniority of respondent No. 4 will be determined from the date his joining the HP Police Service.

11. Pursuant to Notification issued by Government of Himachal Pradesh, respondent No. 4 submitted his joining in Himachal Pradesh Police Department on 25.11.2013 (Annexure P-7). Vide representation dated 17.7.2015, (Annexure P-8), respondent No. 4 requested that he be granted seniority on the basis of HPAS Examination-2007 and not from the year 2013, on the analogy of one Mr. Prashant Deshta. He also submitted that seniority is to be assigned by the Government and Public Service Commission has no role in the same.

12. Vide letter dated 27.5.2020, (Annexure P-9), petitioners herein were asked to file objections, if any, with respect to revision of seniority of respondent No. 4, within 15 days of receipt. Petitioners and other similarly situate persons, while responding to communication dated 27.5.2020, filed objections (Annexure P-10), wherein they while placing reliance upon judgment rendered by Hon'ble Apex Court in K. Meghachandra Singh & others v. Nigam Siro & others(Civil Appeal No. 8833-8835 of 2019 (Arising out of SLP(C) Nos. 19565-19567 of 2019)) decided on 19.11.2019, submitted that a person is disentitled to claim seniority from a date he was not borne in service. Petitioners in their objections to aforesaid communication, further submitted that officer becomes eligible to acquire seniority when he gets inducted in a particular department. They claimed that since, respondent No. 4 came to be inducted in service vide Notification dated 25.11.2013, he cannot claim seniority on the basis of his having passed HPAS Examination-2007.

13. In the Objections, as detailed herein above, petitioners submitted that neither copy of representation filed by respondent No. 4 claiming seniority has been supplied to them nor ground on which such seniority is being claimed, as such, they be given reasonable time to file detailed representation.

14. Vide communication dated 5.7.2020, Annexure P-11, petitioners were informed that record pertaining to recruitment of HPAS from 2005 to 2012, has been weeded and no record of representation of respondent No. 4 is available in files pertaining to year 2013 to 2019 and therefore, his representations were dealt on file, in which he was recommended as a BDO initially.

15. After considering objections, supra, vide order dated 10.11.2020, (Annexure P-12), Additional Chief Secretary (Home) to the Government of Himachal Pradesh, dismissed the objections submitted by the petitioners and allowed the representation filed by respondent No. 4, as a result thereof, seniority of respondent No. 4 came to be fixed at Sr. No. 135 (below Mr. Ram Lal and above Mr. Sunil Dutt) in Final Seniority List of HPPS officers, as it stood on 1.1.2010, circulated vide memo No. Home(D)A(2)2/2010 dated 1.10.2010. While passing aforesaid order, respondent Department clarified that seniority of respondent No. 4 in HPPS cadre will be from 16.11.2009 to 24.11.2013 on notional basis and from 25.11.2013 on actual basis. In the aforesaid background, petitioners herein, who are HPPS Class I Officers have approached this court in the instant proceedings, praying for reliefs as reproduced.

16. Some of petitioners are direct recruits of HPPS and some had joined the department as Sub Inspectors, however, as of today, all the petitioners stand appointed as HPPS i.e. Deputy Superintendent of Police.

17. Precisely the grouse of the petitioners, as has been highlighted in petition and further canvassed by Mr. Sunil Mohan Goel learned counsel for the petitioners is that impugned order, Annexure P-12, whereby objections filed by petitioners to the proposal of Department to grant revised seniority to respondent No. 4 on the basis of his having passed HPAS Examination-2007 came to be dismissed, is not sustainable in the eye of law, being totally non-speaking order.

18. While making this court peruse, impugned order vis-a-vis objections filed by the petitioners, Mr. Sunil Mohan Goel, learned counsel for the petitioners vehemently argued that authority concerned, while passing aforesaid order, has not at all bothered to even look into objections and straightway, without even discussing objections, proceeded to grant seniority to the respondent No. 4, over and above petitioners, who were admittedly senior to respondent No. 4, on account of their having been borne on the cadre much before respondent No. 4. Mr. Goel, learned counsel for the petitioners further argued that, once it is not in dispute that respondent No. 4 was appointed to HPPS cadre vide Notification dated 25.11.2013, and it was categorically provided in the aforesaid order that seniority shall be granted from the date of joining the service, there was no occasion, if any, for the Department as well as Public Service Commission to assign seniority to respondent No. 4 with effect from 16.11.2009, on account of his having participated in HPAS Examination-2007.

19. Mr. Goel, learned counsel for the petitioners, further submitted that once, it is not in dispute that Mr. Kapil Tomar, candidate belonging to Scheduled Caste category, on account of his having participated in HPAS Examination-2007, was allotted HPPS cadre and pursuant to his selection against HPPS cadre, he had joined the Himachal Pradesh Police Department on 27.11.2009 and thereafter, he continued to serve the Police Department till 19.6.2010, it is not understood that how and on what basis, respondent No. 4, who was allotted HPPS cadre in 2013, could have been given seniority on notional basis with effect from 16.11.2009. Mr. Goel, learned counsel for the petitioners further submitted that though an attempt has been made by respondents to carve out a case that pursuant to HPAS Examination-2007, which was concluded in 2009, respondent No. 4 ought to have been allotted HPPS cadre at the first instance because, person namely Mr. Kapil Tomar was required to be allotted HPAS cadre against the seat reserved for general category as the person namely Mr. Ashwini Kumar, (general category) was lower in merit. But, it is not in dispute that Mr. Kapil Tomar, who on account of his being higher in merit, ought to have been allotted HPAS cadre, never objected to the same, rather, pursuant to recommendation made by the Commission dated 17.8.2009 and appointment offered vide Notification dated 16.11.2009, he joined the HP Police Services on 27.11.2009 and thereafter, he continued to serve the Police Department till 19.6.2010, meaning thereby that one post of HPPS pursuant to HPAS Examination-2007, concluded in 2009, stood filled up for all intents and purposes.

20. Mr. Goel, further submitted that once Mr. Kapil Tomar, resigned from the post, after having joined the same and thereafter requisition was sent by Department to fill up such post, prayer made on behalf of respondent No. 4 to allot him cadre of HPPS in place of Mr. Kapil Tomar, could not have been considered or allowed. Mr. Goel, further submitted that Mr. Kapil Tomar, had resigned from Himachal Pradesh Police Department and he was relieved by Director-General of Police on 19.6.2010 and, thereafter, respondent No. 4 made representation on 23.8.2011, praying therein to allot the HPPS cadre in place of Mr. Kapil Tomar, which otherwise was not relevant for the reason that, as per Rules of Business of Himachal Pradesh Public Service Commission, demand, if any, made by department after vacation of post on account of death or resignation, could have been entertained by Commission within one year from the date of issue of recommendation by it (Commission), whereas, in the present case, no request, within one year from date of recommendation, was ever made by department concerned to recommend the candidate next in merit, rather, post qua which recommendation could be made by Public Service Commission, was decided to be re-advertised and in that regard, requisition stood sent to the Himachal Pradesh Public Service Commission by the respondent Department.

21. Mr. Goel, learned counsel for the petitioners, further submitted that though in terms of rule 18 of Himachal Pradesh Police Rules, 1973, seniority could only be given from the date of joining the Police Service and competent authority, having taken note of aforesaid rule, while ordering induction of respondent No. 4 to HPPS cadre, specifically ordered that seniority of respondent No. 4 shall be fixed from the date of his joining the service but yet respondents, with a view to give undue favour to respondent No. 4 granted him seniority from 16.11.2009 to 24.11.2013 on notional basis, during which period, respondent No. 4 was not even borne on the cadre of HPPS and thereafter, on actual basis with effect from 25.11.2013.

22. Lastly, Mr. Goel, submitted that though very appointment of respondent No. 4 in the cadre of HPPS is de hors the rules and appears to have been made to give undue advantage to said person but since no challenge to the same has been laid in the instant proceedings, grievance of his clients is to the extent only that notional seniority could not have been granted to respondent No. 4 with effect from 16.11.2009 to 24.11.2013, during which period, post in question, otherwise stood occupied by Mr. Kapil Tomar (with effect from 27.8.2009), who, as per version of the respondent Department, was relieved from Department on 19.6.2010. In support of aforesaid submission, Mr. Goel, also invited attention of this court to few judgments which shall be discussed in latter part of order.

23. Per contra, Mr. Rajan Kahol, learned Additional Advocate General, appearing for respondent Nos. 1 and 2/State, Mr. Vikrant Thakur, learned counsel for the respondent No. 3-Commission and Mr. Sanjeev Bhushan, learned senior counsel duly assisted by Mr. Naveen Awasthi, Advocate, appearing for the respondent No. 4 supported impugned order, Annexure P-12. All the above named counsel vehemently argued that Home Department, by way of passing impugned order, has undone the injustice done to the respondent No. 4 in the year 2009. They further submitted that otherwise also, no injustice can be said to have been done to the petitioners on account of change of seniority, whereby only one person, i.e. respondent No. 4 came to be placed above the petitioners in the seniority list. Learned Additional Advocate General and Mr. Bhushan, learned senior counsel appearing for respondent No. 4, submitted that, in case a person is wrongfully denied appointment by ignoring rules, instructions and law, then such employees is entitled for induction/appointment and the benefit of notional seniority from the date such benefits were legally admissible to him but denied due to wrongful acts/omission of the employer. Above named counsel in nutshell submitted that though person namely Mr.Kapil Tomar belonging to Scheduled Caste category ought to have been offered post of HPAS being higher in merit, but at that time, aforesaid aspect of the matter was ignored by the Department concerned/Commission, as a result thereof, respondent No. 4, who at the relevant time, ought to have been allotted HPPS cadre on account of his being at Sr. No. 2 in Scheduled Caste category, was offered appointment against the post of BDO.

24. Mr. Rajan Kahol, learned Additional Advocate General and Mr. Sanjeev Bhushan, learned senior counsel appearing for respondent No. 4, while referring to Himachal Pradesh Police Rules, 1973, specifically invited attention of this court to rule 22 i.e. Power to Relax to state that where Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing and in consultation with the Commission relax any of the provisions of these rules with respect to any class or category of persons. Learned senior counsel for respondent No. 4 submitted that though in terms of rule 18 of Himachal Pradesh Police Rules, seniority is to be given from the date of joining, but since in the peculiar facts and circumstances of the case, where respondent No. 4 was actually required to be allotted HPPS cadre pursuant to his having cleared HPAS Examination-2007 in 2009, no illegality can be said to have been committed by the Department while allowing representation filed by respondent No. 4, thereby granting seniority on notional basis with effect from 16.11.2009 to 24.11.2013.

25. While referring to case filed by one Mr. Prashant Deshta, learned senior counsel for the respondent No. 4 strenuously argued that respondent No. 4 being similarly situate to aforesaid Prashant Deshta, rightly came to be granted benefit of notional seniority with effect from 16.11.2009 to 24.11.2013. He submitted that had Mr.Kapil Tomar not resigned, he would have continued to remain senior of the petitioners. Since respondent No. 4 has stepped into shoes of Mr. Kapil Tomar, no prejudice, if any, can be said to have been caused to the petitioners, on account of grant of seniority to respondent No. 4 on notional basis with effect from 16.11.2009 to 24.11.2013.

26. They stated that the petitioners have misquoted and misconstrued the word "appointed" in rule 18 of HPPS Rule, as rule 18 deals with inter-se seniority of direct recruits and promotees, who are borne on the cadre from different select lists of direct recruits and promotee officers. They further stated that the word "appointment" so mentioned has to be made from the select list which flows from HPPS Rules, 13, 14 and 15 and State has no power to appoint a person, who is not in the select list. No select list was drawn in 2013 against which the petitioners are claiming that respondent No. 4 has been appointed in 2013, rather, he has been inducted in HPPS cadre on the basis of his having cleared HPAS Examination-2007, result whereof was declared in 2009. They submitted that respondent No. 4 has been selected against Select List of 2009, on national basis in accordance with Rules 13, 14 and 15 and as such, he has been rightly appointed from Select List of 2009 by Government notionally considering him to be borne on HPPS cadre in 2009, notionally.

27. Lastly, learned counsel for the respondent No. 4 and learned Additional Advocate General submitted that since there was no fault, if any, of the respondent No. 4, rather, he suffered for no fault of his, delay if any, on his part to submit representation, may not be of any consequence rather, Department concerned, itself ought to have offered cadre of HPPS to respondent No. 4 pursuant to his having cleared HPAS Examination-2007 concluded in 2009 itself, on account of the fact that person namely Mr. Kapil Tomar, of Scheduled Caste category selected to HPAS had more marks than person namely Mr.Ashwani Kumar, as a result thereof, Mr. Kapil Tomar, was required to be offered HPPS cadre. Had Mr. Kapil Tomar been allotted HPAS cadre, respondent No. 4, next in line of Scheduled Caste category, would have been offered HPPS cadre, in 2009 itself.

28. Learned counsel for respondent No. 4 submitted that since mistake as pointed out herein above, had crept in the year 2009, while offering appointment to respondent No. 4 as Block Development Officer, coupled with the fact that Mr. Kapil Tomar, selected as HPPS pursuant to having cleared HPAS Examination-2007, had vacated the post, no illegality can be said to have been committed by respondent-State, while granting seniority to respondent No. 4 on notional basis with effect from 16.11.2009 to 24.11.2013.

29. Both, learned counsel for the petitioners as well as respondents have placed reliance upon certain judgments, which shall be discussed in later part of the order.

30. Having heard learned counsel for the parties and perused material available on record, this court finds that the facts, as have been taken note herein above are not in dispute, rather stand admitted. Admittedly, respondent No. 4, who belongs to Scheduled Caste category, had participated in HPAS Examination-2007, completed in 2009. On the basis of overall performance, respondent No. 4 was offered post of Block Development Officer, whereas, persons namely Mr.Vikram Mahajan and Mr. Ashwani Kumar were offered appointment as HPAS against general category and Mr.Sachin Kanwal against the post reserved for Scheduled Caste category. Mr. Kapil Tomar, belonging to Scheduled Caste category was offered appointment against the post of HPPS. Another person namely Jitender Kumar was offered appointment as DFSC under general category and respondent No. 4 against the post of Block Development Officer reserved for Scheduled Caste category.

31. Though, it has been claimed on behalf of respondents that at the time of preparation of merit list of HPAS Examination-2007, concluded in 2009, mistake had crept in, inasmuch as Mr.Sachin Kanwal, belonging to Scheduled Caste category was wrongly allotted cadre of HPAS because, Mr.Kapil Tomar, belonging to Scheduled Caste category was higher in merit, as a result thereof, he was required to be offered post of HPAS. Had Public Service Commission offered post of HPAS to Mr.Kapil Tomar, the post for reserved category, respondent No. 4, being second in Scheduled Caste category, would have become entitled for being offered appointment to the post of HPPS reserved for Scheduled Caste category.

32. However, it is not in dispute that person namely Kapil Tomar, belonging to Scheduled Caste category, who otherwise could have been said to be a victim of illegality committed by Public Service Commission, never objected to such illegality, rather, after being offered appointment against the post of HPPS, joined Himachal Pradesh Police Department on 27.11.2009. The moment, above named person, occupied the post of HPPS reserved for Scheduled Caste category, claim of respondent No. 4 for being appointed against aforesaid post, for the reasons as discussed herein above, had extinguished.

33. Though, it has been claimed on behalf of respondent No. 4 that immediately after preparation of merit list, matter was brought to the notice of the Commission, which allegedly told the respondent No. 4 that the matter with regard to allotment of cadre shall be decided after decision of Ashwani Kumar's case, which at the relevant time was pending adjudication before this court. However, no document has been adduced on record, either by respondent No. 4 or the official respondents, to substantiate aforesaid claim of respondent No. 4. Otherwise also, perusal of material adduced on record by respective parties, clearly reveals that prayer made by respondent No. 4 to allot him HPPS cadre came to be considered by department concerned in light of the fact that person namely Mr.Kapil Tomar, who was selected against post of HPPS under Scheduled Caste category, pursuant to his having cleared HPAS Examination-2007, had resigned from the Police Department, in June 2010. Though official respondents, in their reply, have attempted to support their action in passing impugned order Annexure P-12, by stating that injustice was done to respondent No. 4 in the year 2009 itself, when he was wrongly not allotted HPPS cadre, but if the order passed by official respondents, thereby ordering induction of respondent No. 4 in HPPS cadre, is perused in entirety, it clearly reveals that same came to be passed on account of resignation tendered by Mr. Kapil Tomar, from HPPS cadre.

34. Otherwise also, at the cost of repetition, it may be observed that once, person namely Mr.Kapil Tomar, who otherwise being higher in merit than person namely Mr.Sachin Kanwal, was entitled to be offered HPAS cadre, never objected to selection of Mr.Sachin Kanwal to the cadre of HPAS and joined against the post of HPPS, reserved for Scheduled Caste category, coupled with the fact that no objection, if any, in that regard, was either made by Department or the petitioners at that time, issue of injustice, if any, caused to respondent No. 4 proposed to be highlighted by his counsel, may not be of much relevance, rather, with the joining of Mr. Kapil Tomar against the HPPS cadre, aforesaid issue ceased to exist and otherwise, could not be made basis by the Department concerned to grant seniority to respondent No. 4 with effect from 16.11.2009 to 24.11.2013, on notional basis.

35. Otherwise also, this court finds from reply filed by the respondents, that as per provisions contained under Chapter V of Rules of Business of the Himachal Pradesh Public Service Commission, request, if any, made by Department concerned, for replacement, could have been entertained by Himachal Pradesh Public Service Commission, if such request is received within one year from the date of issue of recommendation with further condition that fresh requisition is not received for same post in the intervening period.

36. Rule 5 of Rules of Business of Himachal Pradesh Public Service Commission is reproduced herein below:

"RULES OF BUSINESS OF THE HIMACHAL PRADESH
PUBLIC SERVICE COMMISSION 2007
CHAPTER-V

8. WRITTEN SCREENING TEST, INTERVIEWS AN DDECLARATION OF RESULTS

x x x x

(xi) If a candidate does not join or refuses to join the post on the basis of the recommendation of the Commission, on demand from the Department after cancellation of the offer of appointment, replacement will be given by the Commission at its discretion if the demand is received within a period of one year from the date of issue of recommendation of the Commission provided that no fresh requisition has been received for the same post in the intervening period."

37. Interestingly, in the case at hand, Mr. Kapil Tomar, was relieved from the HPPS cadre on 19.6.2010, whereas, respondent No. 4 made first representation on 23.8.2011, i.e. beyond the period of one year. Since, aforesaid representation dated 23.8.2011, was not replied to by the Department, respondent No. 4 made representations dated 16.12.2011, 5.4.2012 and 30.1.2013, for his appointment in HPPS cadre in place of Mr. Kapil Tomar.

38. Though, in the case at hand, no separate reply has been filed by Himachal Pradesh Public Service Commission, but perusal of communication dated 3.10.2013, (Annexure R-1 of reply filed by respondents Nos. 1 to 3), suggests that pursuant to proposal sent by Department to the Commission, it vide letter dated 21.8.2013, raised certain queries, which ultimately came to be clarified vide communication dated 3.10.2013, meaning thereby, proposal, if any, for replacement of Mr. Kapil Tomar, was initiated by the Police Department in the year 2013. Recommendation of name of Mr. Kapil Tomar, was made by respondent Commission in the year 2009 vide letter dated 17.8.2009 and he joined against the post on 27.11.2009, pursuant to Notification dated 16.11.2009, appointing him to HPPS. After having worked for more than six months, Kapil Tomar, though resigned from the post within one year of joining, he was relieved on 19.6.2010, but in that eventuality, proposal, if any, for replacement made by Him Police Department, could have been entertained by the Commission, if it had been made within one year from the date of issue of recommendation, which in the present case is 17.8.2009, whereas, admittedly in the present case, such proposal for replacement, came to be made in the year 2013.

39. Apart from above, it clearly emerges from reply filed by respondents Nos. 1 to 3, that after, resignation by Mr. Kapil Tomar, from HPPS, department sent requisition to the Commission for advertising this post. Facts, noticed herein above, clearly reveal that proposal for replacement pursuant to resignation rendered by Mr. Kapil Tomar, was not made by Department within one year from the date of issue of recommendation i.e. 17.8.2009, and by the time, such proposal was made, post vacated by Mr. Kapil Tomar, was decided to be re-advertised and in that regard, Department had sent requisition to the Commission.

40. Having noticed aforesaid fact, this court is of the view that proposal, if any, sent by the Police Department for allotment of HPPS cadre to respondent No. 4, should not have been entertained by the Commission. However, since aforesaid action of allotting HPAS cadre to respondent No. 4, is not in question before this court, rather, precise question for adjudication in the instant proceedings, is that, "whether, respondent No. 4 was entitled to be given seniority with effect from 16.11.2009, on notional basis, on account of his having cleared HPAS Examination-2007, final result whereof was declared in the year 2009"

41. Careful perusal of representation (Annexure P-4) submitted by respondent No. 4 reveals that he specifically submitted that post of HPAS vacated by Mr.Kapil Tomar may be given to him since he was next candidate in merit under Scheduled Caste category. Though in representation supra, respondent No. 4 submitted that had the Commission followed the rules initially, he could have been recommended for HPPS, but ultimately prayer made through the said representation was that he be given the post vacated by Mr.Kapil Tomar, who admittedly after having joined against the post of HPAS worked against the post in question for more than six months and thereafter, was relieved on his request on 19.6.2010 (accepted by Department of Home on 3.6.2010).

42. Pursuant to aforesaid request made by respondent No. 4, Commission, on the basis of proposal received from Administrative Department, vide communication dated 3.10.2013, recommended name of respondent No. 4 for appointment to HPPS on the basis of his having passed HPAS Examination-2007, against the post available and to be filled from HPAS Examination-2012. While issuing said order, Commission specifically mandated that seniority will be given to respondent No. 4 from the date of joining the post.

43. Pursuant to aforesaid recommendation, Government vide Notification dated 14.11.2013 (Annexure P-6), appointed respondent No. 4 to HPPS cadre, on probation. In the aforesaid Notification, it also came to be clarified that seniority of respondent No. 4 will be determined from date of joining post. Respondent No. 4 joined HPPS on 25.11.2013 pursuant to Notification dated 14.11.2013, and thereafter, his seniority was fixed accordingly. After almost two years, respondent No. 4 vide communication dated 27.7.2015, (Annexure P-8), claimed seniority from the year 2009 claiming parity with one Prashant Deshta, who was also appointed as a replacement. In the said representation, respondent No. 4 also claimed that Government filled up posts of HPAS in haste, for which he is not at fault and should not be punished. Respondent No. 4 further submitted that he was required to be appointed as HPPS therefore, all the omission on the part of the Government and the Commission stands condoned/relaxed and plea of delay sought to be raised to deny benefit of seniority cannot be allowed to be raised.

44. After having received aforesaid representation, Administrative Department called for objections from the petitioners and other similarly situate persons, who admittedly were higher in seniority than respondent No. 4, on account of their having joined the Department ahead of respondent No. 4. Though petitioners and other similarly situate persons filed objections to the representation filed by respondent No. 4 claiming seniority from the year 2009, on the ground that respondent No. 4 was borne in cadre of HPPS in 2013, after having joined the post on 25.11.2013, as such, he cannot claim seniority with effect from 2009. Petitioners in their objections also raised question of delay and laches. Further time to file detailed representation was also sought on the ground that documents, if any, filed by respondent No. 4 alongwith representation have not been made available but such request was rejected by the Department.

45. Interestingly, in the case at hand, respondent No. 4, if aggrieved by his induction in service from the date of joining with effect from 25.11.2013 pursuant to order dated 14.11.2013, never laid challenge to the same in any proceedings, rather, respondent No. 4 being satisfied with Notification dated 14.11.2013, wherein, he was categorically informed that seniority in HPPS would be determined from his joining the service, submitted his joining on 25.11.2013. Though, after having joined the service on 25.11.2013, name of respondent No. 4 was entered in seniority list, from the date of his joining, approximately, after two years, one representation dated 27.7.2015, came to be filed, which, if otherwise, perused is totally cryptic and no plausible reasoning has been rendered on record, for claiming seniority with effect from 2009, that too, on the basis of his having passed HPAS Examination-2007, result whereof was declared in 2009. Though, in the aforesaid representation, respondent No. 4 claimed parity with Prashant Deshta, but there is nothing in representation to demonstrate, that how and under what circumstances, his case is similar to that of Mr. Prashant Deshta.

46. Interestingly, while considering aforesaid prayer, made by respondent No. 4, Administrative Department made no attempt to consult Himachal Pradesh Public Service Commission which while concurring with proposal of Administrative Department recommended induction of respondent No. 4 in the cadre of HPPS being replacement to Mr. Kapil Tomar, who resigned in the year 2010. Though, it has been claimed on behalf of respondent No. 4 that for granting seniority, Administrative Department was not required to consult Public Service Commission, but such plea cannot be accepted, for the reason that very proposal of induction of respondent No. 4 in HPPS cadre was accepted by Public Service Commission subject to the condition that seniority in the cadre shall given to respondent No. 4, from the date of his joining the post/cadre.

47. Since very order of induction of respondent No. 4 to HPPS cadre containing condition that seniority shall be determined from the date of joining the post in question, has not been altered/modified till date by the authority responsible for issuing such order i.e. Himachal Pradesh Public Service Commission, prayer if any made for granting seniority from back date otherwise, could not have been entertained by the Department, without consulting Public Service Commission. Similarly, this court finds that Notification dated 14.11.2013, which came to be issued pursuant to recommendation made by Public Service Commission, containing condition that seniority to respondent NO.4 shall be given from the date of his joining the service, was never laid challenge and as such, nothing contrary to same could have been otherwise done by the Department, without modification/alteration of the aforesaid Notification.

48. Though, Mr. Rajan Kahol, learned Additional Advocate General with a view to demonstrate that before considering prayer of respondent No. 4 for granting seniority with effect from 16.11.2009, Himachal Pradesh Public Service Commission was consulted, made available photocopy of the record of the case file, perusal whereof, though reveals that before placing the matter before Council of Ministers, Administrative Department was advised to consult Himachal Pradesh Public Service Commission, but neither Administrative Department nor the Himachal Pradesh Public Service Commission have been able to place on record document, if any, suggestive of the fact, that Himachal Pradesh Public Service Commission was consulted or proposal, if any, was made to modify its earlier recommendation... whereby induction of respondent No. 4 to HPPS was made subject to the condition that seniority on the post shall be determined, from the date of joining the post.

49. Leaving everything aside, there appears to be merit in the contention of learned counsel for the petitioners that since, respondent No. 4, was not borne on the cadre of HPPS on 16.11.2009, rather, he came to be inducted in HPPS in the year 2013, prayer made on behalf of respondent No. 4 to grant seniority with effect from 16.11.2009, could not have been accepted by the Department.

50. Impugned Notification dated 10.11.2020 (Annexure P-12), clearly suggests that Governor, Himachal Pradesh, keeping in view facts and circumstances of the case and in exercise of power conferred upon Her Excellency, under rule 18 of Himachal Pradesh Police Rules, 1973, proceeded to fix seniority of respondent No. 4 at Sr. No. 135, meaning thereby, seniority of respondent No. 4 came to be fixed under rule 18 of Himachal Pradesh Police Rules, which reads as under:

"18. Seniority of members of the service. The seniority of officers appointed to the service shall be determined in accordance with the order of their appointment to the service:

provided that--

(a) If the order of appointment of any candidate is cancelled under the provisions of rate 17, and such candidate is subsequently appointed to the service the date of his appointment to the service for the purpose of this rule shall be the date of such subsequent appointment:

(b) If any officer appointed to the service fails to qualify himself for substantive permanent appointment within the prescribed period of probation the Government may determine whether the date of his appointment for the purpose of this rule shall be postponed by a period not exceeding the period by which such officer's substantive permanent appointment is delayed beyond the prescribed period of probation;

(c) The seniority of those Himachal Pradesh Polices Service Officers allocated to Himachal Pradesh under section 4 of section 40 of the State of Himachal Pradesh Act, 1970, whose seniority has been finalised and circulated under various letters issued by the Government of India shall remain unchanged."

51. Bare perusal of aforesaid provision clearly reveals that seniority of officer appointed to service, shall be determined in order of merit. Though two contingencies as provided in proviso to aforesaid rule suggests that date of granting seniority may vary from the actual date of appointment, but contingencies as provided in said proviso may not be of much relevance in the present case.

52. Though learned Additional Advocate General and Mr. Sanjeev Bhushan, learned senior counsel specifically invited attention of this court to rule 21 of the Himachal Pradesh Police Rules to state that Government in exceptional cases, for the reasons to be recorded in writing and in consultation with Public Service Commission, may relax any rules, with respect to any class or category of persons, but in the present case, no cogent reasoning has been adduced on record for relaxing the condition as contained in rule 18.

53. Similarly, there is nothing on record that consultation if any was done with Himachal Pradesh Public Service Commission, while granting revising seniority of respondent No. 4 i.e. granting seniority on notional basis with effect from 16.11.2009 to 24.11.2013, and thereafter on actual basis with effect from 25.11.2013, by way of relaxing relevant provision of aforesaid rule,

54. While referring to reply filed by respondents Nos. 1 to 3, Mr. Kahol, learned Additional Advocate General attempted to argue that a combined reading of rule 1 .. rub 7 and 13 and 14 of Himachal Pradesh Police Rules, 1973, annexure P-1, covers three situations under which rule can be relaxed. Relevant para of reply reads as under:

"from page 93 onwards of paper-book

The First situation, arises when, the Public Service Commission undertakes the selection for direct recruitment to the HPPS and the Commission prepares a Select List of direct recruits in order of merit, after giving adequate representation to qualified schedule caste/tribe candidates and when, there is a total compliance of rules and law. The first situation is neither applicable nor attracted in the present case.

The second situation, arises when, the Public Service Commission undertakes the selection for the direct recruitment to HPPS and the Commission prepares a Select List of direct recruits but such Select List suffers from two infirmities, firstly, when, such select list ignores the order of merit of candidates who have been declared as qualified in examination by the Commission and secondly, when, such select list ignores adequate representation to qualified schedule caste/tribe candidates admissible in Law and in such a situation, the State Govt. has the right to include a person in the Select List. Meaning thereby, that in case the select list has been wrongly drawn, by ignoring the order of merit and/or by ignoring the settled law whereby, a reserved candidate who by virtue of higher merit has a right to be placed above the unreserved-open category candidate and this inaction has resulted in denying the adequate representation to qualified reserved schedule caste/tribe candidate who has a legal right to be included in the select list; then, in this situation, the State Govt. is empowered to include the name of the qualified reserved candidate (respondent No. 4) in the select list as has been done in the present case, in accordance with Rule 6(1)(a), 9 and 13 of the HPPS Service Rules and the settled law. In this background a perusal of the records/ representation of the respondent No. 4 no.4 shows that on the requisition of the State Govt., the HP Public Service Commission conducted HPAS Examination-2007, for filling up three posts of Himachal Pradesh Administrative Service-HPAS (i.e. 2 posts for HPAS-UR-Gen & 1 post of HPAS-SC) and one post of Himachal Pradesh Police Service (i.e. 1 post of HPPS-SC). After selection, the merit was allegedly drawn by the Commission, showing Dr. Vikram Mahajan (UR Candidate), Sh. Sachin Kanwal (SC), Sh. Kapil Tomar (SC) and Sh. Ashwini Kumar (UR Candidate), but Sh. Kapil Tomar who belonged to reserved category by virtue of higher merit, as per legal mandate, was to be treated as UR-General category candidate and therefore, Sh. Kapil Tomar was to be inducted into HPAS in place of Sh. Ashwini Kumar but Sh. Kapil Tomar, who belonged to reserved-SC category was selected and appointed against sole post of HPPS; on which the respondent No. 4 no.4 Dushyant Sarpal who was next in the inter-se merit of qualified reserved-SC category candidates for HPPS had a right to be included in the Select List of HPPS and had a right to be appointed in HPPS in place of Sh. Kapil Tomar, who was inducted in HPPS wrongly by ignoring the rules and Law. Thus, it is submitted that the respondent No. 4 no.4, who belonged to reserved (SC) category had a right based on Rules and Law to be included in Select List for HPPS and had a right of appointment and seniority from date Sh. Kapil tomar, was wrongly included in Select List of HPPS and was given appointment and seniority from 16-11-2009. In view of this, the department rectified its acts/omissions/mistake and gave the benefits of induction/appointment and seniority to the respondent No. 4 no 4 in HPPS from the due date i.e. 16-11-2009 by issuing the orders on 10-11-2020 (Annexure P-12) in accordance with the R&P Rules and the Law.

The third situation, arises when, a candidate who is included in the Select List, vacates the post within a period of one year from the date of approval of Select List issued by the Commission. Besides the above, the provision of rule 8(xi) of Chapter-V of the pre-amended Rules of Business of Himachal Pradesh Public Service Commission, 2007 is reproduced below:

"If a candidate does not join or refuses to join the post on the basis of the recommendations of the Commission, after cancellation of the offer of appointment or on vacation of post due to death, resignation etc. of a candidate recommended by the Commission, the replacement will be given by the Commission at its discretion, if the demand is received within a period of one year from the date of issue of recommendation of the Commission provided that no fresh requisition has been received from the same post in the intervening period."

In this background, it is submitted that once Sh. Kapil Tomar, a reserved-SC candidate was selected/appointed on the sole post of HPPS (though wrongly) and Sh. Tomar joined in HPPS on 16.11.2009 (Annexure P-2) but had left the job for serving/rejoining serving in the parent department of Treasuries and Accounts on 19.8.2010 (Annexure P-3) and on resultant vacancy was to be filled up from next qualified reserved-schedule caste candidate i.e. the respondent No. 4 no.4, (notwithstanding the right of Sh. Kapil Tomar for appointment and seniority in HPAS in view of his higher merit vis-a-vis Sh. Ashwini Kumar) from 16-11-2009 therefore, the department had rectified its inadvertent inaction acts/omissions/mistake and given the benefit of induction/appointment and seniority to the respondent No. 4 no.4 in HPPS from due date i.e. 16-11-2009, by issuing the orders on 10-11-2020 (Annexure P-12) in accordance with Law and the writ petition being devoid of any merit deserves dismissal."

55. As per said reply, Public Service Commission can relax a rule, to give adequate representation to Scheduled Caste/tribe candidates. Second situation under which rules can be relaxed is that whenever, a select list suffers from two infirmities, firstly, when it ignores order of merit of candidates, who have been declared successful, or when such rule ignores adequate representation to the Scheduled Caste/scheduled tribe candidate as admissible as per law, meaning thereby in case, select list has been drawn wrongly by ignoring merit or law, whereby a candidate has right to be placed above.. and this inaction has resulted in denying adequate representation to Scheduled Caste/Scheduled Tribe candidate, who has legal right to be included in select list, State Government is empowered to include name of qualified reserve category candidate.

56. In the case at hand, attempt has been made by respondent State to justify its action in relaxing rule 18, on the ground that respondent No. 4 ought to have been inducted in HPPS on the strength of his having passed HPAS Examination-2007, in 2009 itself, on account of the fact that person namely Kapil Tomar selected against the post of HPPS reserved for Scheduled Caste category, being higher in merit than Sachin Kanwal, was required to be offered HPAS cadre

57. Though aforesaid issue is not required to be adjudicated in the instant case, but even otherwise, it is not in dispute that person namely Kapil Tomar, who on account of his being higher in merit, was required to be allotted cadre of HPAS, never objected to his selection to the cadre of HPPS, rather, he joined Himachal Pradesh Police Department, pursuant to his selection in HPAS Examination-2007, result whereof came be declared in the year 2007.

58. Since, Mr. Kapil Tomar, occupied the post of HPPS, despite his being higher in merit and another person, Mr. Sachin Kanwal, was allotted HPAS cadre, as such, respondent No. 4, who was offered post of Block Development Officer, was not entitled to rake up aforesaid issue. Otherwise also, respondent No. 4 was inducted into the HPPS on account of vacation of post of HPPS by Mr. Kapil Tomar, who after having served the Himachal Pradesh Police Department for more than six months, resigned and joined back his parent Department, i.e. Treasury and Accounts Department.

59. For the facts, as noticed herein above, there was no ground for the Department to relax the rules, specifically rule 18 of Himachal Pradesh Police Rules, 1973, which specifically provides that seniority of office appointed to the service shall be determined in order of their merit. Since respondent NO.4 was appointed to the service vide Notification dated 14.11.2013, and he had joined the department on 25.11.2013, prayer made on his behalf to grant seniority from the year 2009, otherwise, could not have been considered and decided by the Department.

60. There is another aspect of the matter. Once, it is not in dispute that Mr. Kapil Tomar, after having been appointed to the post of HPPS reserved for Scheduled Caste category, pursuant to HPAS Examination-2007, was offered post in question, in the year 2009 and he worked on said post for more than six months, before being relieved on 19.6.2010, it is not understood, how and on what basis, Administrative Department could proceed to grant seniority to respondent No. 4, vide impugned order with effect from 16.11.2009 to 24.11.2013 on notional basis and with effect from 25.11.2013, on actual basis.

61. Once, Mr. Kapil Tomar, was working against the post in question till 19.6.2010, and representation to induct respondent No. 4 against post vacated by Mr. Kapil Tomar was made for the first time on 23.8.2011, whereas the occasion for department to grant seniority to respondent No. 4 with effect from 16.11.2009, on which date, Mr. Kapil Tomar, was working on the post in question.

62. Vide order dated 16.11.2009, Mr. Kapil Tomar was appointed against the post in question, which he actually joined on 27.11.2009 but fact remains that aforesaid person kept on working against the post in question till 19.6.2010, meaning thereby he had been drawing salary against said post till 19.6.2010. If it is so, how and under what circumstances, another person can be considered to be working against the post in question, which at the relevant time was occupied by earlier person. No doubt, qua said period seniority on notional basis has been given, but since post qua which seniority is being given, was not vacant, rather occupied by earlier person, there was no occasion for respondent Department to grant seniority, may be on notional basis, to the respondent No. 4, qua aforesaid period.

63. At this stage, it would be apt to take note of case of Prashant Deshta, which was heavily relied upon by the Department, while acceding to his request for grant of seniority with effect from 2009 Mr. Deshta appeared in HPAS 2006 and selected in HPPS and joined as HPPS on 10.10.2008. Person namely Vivek Gupta, who also appeared in HPAS Examination 2006 was appointed to cadre of HPAS, on 20.9.2008 but he did not join and his offer was cancelled on 24.12.2008. ON the representation of Prashant Destha in September, 2009, he was appointed to HPAS on 27.6.2010, against seat vacated by Mr. Vivek Gupta. NO doubt, there was delay in appointment of Prashant Deshta because he was appointed one year later to Vivek Gupta but admittedly Prashant Deshta had made representation in September, 2009 i.e. well within one year from the date of cancellation of the appointment of Vivek Gupta i.e. 24.12.2008.

64. However, in the case at hand, Mr. Kapil Tomar, vacated HPPS post on 19.6.2010 but respondent No. 4 made representation for first time on 23.8.2011 to the Department for his induction to HPPS against the post vacated by Mr. Kapil Tomar. Moreover, there is nothing on record that Administrative Department ever made proposal for replacement of Mr. Kapil Tomar, to Himachal Pradesh Public Service Commission within a period of one year from the date of recommendation, rather, proposal to make replacement came from Department after more than two years that too, after its having sent requisition to Himachal Pradesh Public Service Commission to advertise the post vacated by Mr. Kapil Tomar.

65. Though this court has held in earlier part of order that aforesaid aspect need not be dealt, especially in view of prayer sought by petitioners, but since very basis of the relief granted to respondent No. 4 in terms of impugned order, are the facts as noticed herein above, this court is required to take note of such facts, repeatedly.

66. Since, on the basis of facts as noticed herein above, respondent No. 4 stood granted benefit of induction into HPPS and Public Service Commission as well as Administrative Department, while inducting respondent No. 4 to HPPS had clarified that seniority will be determined from the date of joining, there was otherwise, no occasion, if any, for the department to take into consideration such facts, which were otherwise made basis for inducting respondent No. 4 to HPPS for granting him benefit of seniority from back date.

67. Since, facts, which ultimately came to be made basis for impugned order, were very much in the knowledge of Public Service Commission as well as Administrative Department at the time of issuing Notification dated 14.11.2023, thereby inducting respondent No. 4 to HPPS and yet came to be stipulated in the appointment letter that seniority would be given from the date of joining the service, Administrative Department is otherwise estopped from re-opening the issue and grant seniority to respondent No. 4 with effect from 16.11.2009, on which date, he was not even borne on the cadre.

68. Respondent No. 4 was borne on the cadre of HPPS on 25.11.2013, on which date, he joined the service. If it is so, he otherwise could not have been granted benefit of seniority from the year 2009 i.e. 16.11.2009. Otherwise also post of HPPS, advertised in HPAS Examination-2007, stood occupied by Mr. Kapil Tomar, who after having served against the post for more than six months, vacated the same on 19.6.2010.

69. Since, post against which respondent No. 4 claimed seniority from 2009, remained occupied till 2010, prayer made on behalf of respondent No. 4 for granting seniority with effect from 16.11.2009, otherwise, could not have been acceded to.

70. Now, I shall be referring to some of case laws, relied upon by parties.

71. Hon'ble Apex Court in judgment dated 29.11.1994 in Civil Appeal No. 3887 of 1990 titled Des Raj Sharma v. State of HP. & Ors., upheld view taken by Himachal Pradesh Administrative Tribunal that the officer is entitled for seniority from the date, he was appointed to the services on regular basis. In the afore case, issue before Hon'ble Apex Court was that DPC constituted under Himachal Pradesh Police Service Rules, considered the case of Shri Des Raj, for promotion in meeting held on 20.7.1980 and as such, he was not selected for appointment but was placed in the Select List and thereafter, said Des Raj was promoted as Deputy Superintendent of Police against leave reserve vacancy, vide Notification dated 21.7.1980. Later on, Des Raj was selected for appointment to service by DPC in 1985 but he claimed that he may be granted seniority with effect from 21.7.1980 and not from 19.4.1985. The Tribunal held on the basis of interpretation of Rules 2(f)(g), (h), 6, 7, 13, 14, 17 and 18 of the rules, that said Des Raj was entitled to seniority with effect from 19.4.1985, when he was appointed to the service on regular basis.

72. Question with regard to seniority under Himachal Pradesh Police Rules came up for consideration before Himachal Pradesh Administrative Tribunal in OA/TA No. 372/87 titled Bhagat Singh & ors. v. State of H.P. & Ors., wherein learned Tribunal below arrived at a conclusion that officer was entitled to seniority from the date, from when he was appointed on regular basis. Said judgment was taken to Hon'ble Apex Court but Hon'ble Apex Court affirmed the findings of tribunal.

73. Issue with regard to grant of inter-se seniority between direct recruits and promotees came up before this Court in CWP(T) No. 1584 of 2008 titled Ramesh Chandera Chajta & ors. v. State of H.P. & Ors., decided on 29.7.2010, wherein, promotees were appointed in the year 1994 to 1999, purely on temporary basis against short term/ex-cadre posts as Deputy Superintendent of Police/SDPOs, till further orders. It was further stated that the temporary orders of the appointment wll not confer any right upon them to claim seniority/inter se seniority or regular promotions in HPPS. Subsequently, these ad hoc employees were given regular appointment in the year 2000. The issue before this Court was with regard to respondent State granting seniority to those promotees with effect from the date, they were temporarily appointed to the post of Deputy Superintendent of Police, from the year 1994 to 1999. Between aforesaid period, direct recruitment was made in Himachal Pradesh Police Service and being aggrieved by fact that promotees' temporary promotion was counted for the purpose of seniority, direct recruits approached this Court. Hon'ble Single Judge of this Court, while taking into account the Rules and law laid down by Hon'ble Apex Court, quashed the memorandum issued by the State granting seniority to such promotees from the date they were promoted on temporary basis with the direction to fix the inter-se seniority of direct recruits and private respondents therein (promotees) strictly in accordance with rule 18 of the Rules. Aforesaid decision was challenged in LPA No. 163 of 2010 titled Rajesh Kumar Dharmani & Ors. v Ramesh Chandera Chajta & Ors. before a Division Bench of this Court, which, taking into account rules 2(e), (f), (g), 7 and 18 came to the conclusion that one becomes member of service only after completion of probation and seniority of the member of service is fixed based on the date of commencement of service.

74. In the instant case, vide Notification dated 14.11.2013, respondent No. 4 was offered appointment on probation from the date of joining as such, his seniority would be determined from the date of joining Himachal Pradesh Police Service. If it is so, order Annexure P-12 giving seniority respondent No. 4 is not tenable in law. If said order is permitted to sustain, it would amount to giving seniority to a person, from date when he was not even borne on cadre. Order dated 10.11.2020, is also bad in law, and deserves to be set aside for the reason that by now it is settled that any order having evil and civil consequences cannot be passed at the back of persons affected.

75. Though, in the case at hand, petitioners were asked to submit objections but bare reading of impugned order dated 20.11.2020 would demonstrate that said opportunity was granted to the petitioners to camouflage, it was mere formality because by that time, department had taken decision to assign seniority to respondent NO.4with effect from 16.11.2009 to 24.11.2013 on notional basis and on actual basis with effect from 25.11.2013. Though petitioners prayed for copy of representation and document, enabling them to file detailed reply, but the department without supplying same, proceeded to pass impugned order dated 27.11.2020 in hot haste. No opportunity of hearing was ever afforded to petitioners as such, order dated 27.11.2020 passed in violation of principles of natural justice is otherwise not sustainable in eye of law.

76. Moreover impugned order is totally non speaking order, because, it nowhere suggests application of mind, if any, qua objections raised by the petitioners, there is no mention of rules, especially rule 18, on the basis of which benefit of seniority with effect from 16.11.2009 to 24.11.2013 came to be granted to respondent No. 4.

77. Needless to say, seniority, which otherwise stood settled in 2009, could not have been unsettled by the respondents. In the case at hand, settled position has been unsettled after 11 years, which itself violates right of petitioners.

78. In similar facts, a Division Bench of this Court in Suresh Kapoor and others v. State of H.P. and others, CWP No. 1218 of 2021, decided on 1.12.2022, has held as under:

"14. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (Refer: Shiba Shankar Mohapatra and others vs. State of Orissa and others, (2010) 12 SCC 471).

15. At this stage, it shall be profitable to refer to the following observations of the Hon'ble Supreme Court in Vijay Kumar Kaul and others vs. Union of India and others, (2012) 7 SCC 610 as under:

"[23] It is necessary to keep in mind that claim for the seniority is to be put forth within a reasonable period of time. In this context, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State. of Tamil Nadu, 1974 AIR(SC) 2271, wherein a two Judge Bench has held thus:-

"It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the courts to put forward stale claims and try to unsettle matters."

[24] In Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr., 2006 AIR(SC) 1581 this Court had held thus that delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports,  1970 AIR(SC) 769. Of course, the discretion has to be exercised judicially and reasonably.

[25] In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors.,2009 AIR(SC) 571 this Court has opined that one of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.

[26] From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy.

[27] The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time.

16. A stale claim of getting promotional benefits normally should not be entertained and reference in this regard can conveniently be made to the judgment rendered by the Hon'ble Supreme Court in State of Uttaranchal and another vs. Shiv Charan Singh Bhandari and others, (2013) 12 SCC 179, wherein after considering the entire law on the subject, it was held as under:

[27] We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. 28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court."

17. Seniority is a civil right, which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority is unsettled, it may generate bitterness, resentment, hostility among the Government servants and even the enthusiasm to do quality work may be lost.

18. Learned counsel for the petitioners would argue that determination of seniority dispute is continuing wrong and therefore, relief should be granted even if there is a long delay in seeking remedy, however we find no force in the said submission.

19. The legal position with respect to belated service related claim is well articulated by the Hon'ble Supreme Court in its decision in Union of India and others vs. Tarsem Singh, (2008) 8 SCC 648, wherein it was held as under:

7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

79. Another Division Bench of this Court in Pervesh Kumari v. State of Himachal Pradesh & others, LPA No. 165 of 2022 alongwith connected matter, decided on 14.5.2024, while dealing with issue of unsettling seniority, observed that promotions in the aforesaid case had also been made on the basis of the seniority list. Division Bench held that the appellants therein, had failed to give cogent reasons for not assailing the seniority list within a reasonable period. Division Bench further held that redrawal of seniority list after more than twenty years would not just affect a person or two but the seniority positions of more than 45 persons would be upset. Division Bench in the aforesaid judgment has held as under:

"4. Contentions & Consideration

4(i) Opportunity of Hearing

Learned counsel for the appellants first contended that appellants (in LPA No. 165 of 2022) had moved applications for their impleadment in the writ petition. These impleadment applications had not been decided and remained pending. The appellants were condemned unheard.

The above argument is contrary to the record. The writ record shows that many applications were moved by the appellants and orders were passed upon them from time to time. Orders have also been passed in the writ petition enabling the State to make promotions on the basis of impugned seniority list subject to the outcome of the writ petition.

It is appellants' admitted case that they were heard by the learned Single Judge. Besides recording presence of learned Counsel in the attendance sheets, para-5 of the impugned judgment records that impleadment applications were allowed and the applicants therein were impleaded as party-respondents. The said paragraph reads as under:

"During the pendency of the petition, respondent No. 4s were impleaded. They were also given due opportunity to put forth their stand before the Court. Proposed respondents in CMPs No. 7296 and 7297 of 2022 were also heard. Formally, these applications are allowed by impleading the applicants as party respondents."

Leave to appeal was granted to the appellants in LPA No. 171 of 2022 vide order dated 28.9.2022.

It will also be appropriate to notice here that writ petition was filed on 21.03.2020 when seniority positions of Patwaris had not been changed. At that time, appellants ranked juniors to the writ petitioners in the seniority list in place. Writ petitioners were not required to implead them as parties. After filing of the writ petition the State acted upon communication dated 20.02.2020 & redrew the seniority lists and implemented the executive instructions dated 30.06.1997 whereunder the appellants became seniors to the writ petitioners and some of them got further promotion on that basis. Some of the affected parties, like the appellants, in LPA No. 165 of 2022 were impleaded as respondents in the writ petition. Their learned counsel attended the case hearings and were heard by the learned Single Judge. It is not the case of these appellants that they were not given adequate hearing. Some of the affected persons have been granted leave to appeal against the impugned judgment (in LPA No. 171 of 2022). Some of the affected parties moved applications and have been impleaded in these appeals as well.

We have heard all the appearing Counsel. In the given facts and circumstances, it cannot be said that cause propounded by the appellants was not considered or that appellants who sought their impleadment before the learned Single Judge were denied opportunity of hearing.

4(ii) Merits of the matter

4(ii)(a) The appellants have contended that the finding of the learned Single Judge that instructions dated 30.6.1997 supplanted 1992 R&P Rules, are not in order; That there was no provision whatsoever in the 1992 R&P Rules for determining the seniority positions of Patwaris. It was the executive instructions issued on 30.6.1997 that provided for maintaining seniority from selected Patwari candidates in order of merit determined on the basis of Patwar examination and practical training.

The contention of the learned counsel for the writ petitioners in defence of the impugned judgment is that Rules 15(A) and 15(B) of the 1992 R&P Rules covered the field for determining the seniority of Patwaris. As per these Rules, District Collector to maintain a register of Patwari candidates selected for training in accordance with merit obtained in the selection test as prescribed in Rule 15(A)(1). Rule 15(A)(4) provided that selected candidates had to undergo Patwar training and on completion of training the candidates had to qualify Patwar examination. In terms of Rule 15(A)(5) a candidate who was not able to qualify the Patwar training was to be allowed to undergo fresh training in the same district in the next batch. Rule 15(A)(6) provided that on passing of Patwar examination the candidates will be considered as 'Qualified Patwari Candidate'. Rule 15(B) stipulated that a 'Qualified Patwari Candidate' shall be offered post of Patwari strictly in accordance with the seniority maintained in the patwari candidate register under Rule 15(A). The contention of the learned counsel for the writ petitioners is that the seniority in terms of the 1992 R&P Rules, therefore, had to be maintained strictly in accordance with the merit of Patwari candidate register in Rule 15(A) i.e. on the basis of merit of the selection test. Be that as it may, we are of the considered view that for the reasons and discussion in the succeeding paras we need not venture into the question whether seniority of Patwaris could be determined under the 1992 R&P Rules or whether it was required to be determined under the executive instructions dated 30.06.1997 or whether the 1997 executive instructions supplemented or supplanted the 1992 R&P Rules.

4(ii)(b) Settled Seniority/Delay & Laches

i) The appellants and the writ petitioners were inducted into service during the year 1997-98. Such induction was under the 1992 R&P Rules for the posts of Patwaris. First seniority list after the induction of the writ petitioners and appellants as Patwaris was circulated by the State on 5.11.1999. It was a tentative seniority list. Final seniority list was issued on 7.1.2000. The writ petitioners were assigned higher seniority positions than the appellants in these lists. According to the State and writ petitioners, seniority lists were prepared on the basis of merit obtained by the candidates including the writ petitioners, the appellants and others on the basis of their merit in the selection test held in terms of Rules 15(A) & 15(B) of the 1992 R&P Rules.

ii) Be that as it may. The fact remains that seniority list of Patwaris finalized on 7.01.2000 was never questioned by the appellants for over two decades. No grievance was raised by the appellants that seniority had been wrongly drawn on the basis of the 1992 R&P Rules or that the 1992 R&P Rules contained no provision for drawing the seniority list or that seniority was required to be determined as per executive instructions dated 30.06.1997 as was determined in some other districts of the State.

iii) Seniority list of Patwaris was thereafter issued on 21.2.2019 and revised on 25.07.2019. This was also in line and tune with the merit obtained in the Patwari selection test held under Rules 15(A) of 1992 R&P Rules. Seniority positions of the appellants and the writ petitioners remained as they were in the seniority list issued on 7.01.2000 or in other words writ petitioners enjoyed higher seniority positions than the appellants.

iv) For the first time, some Patwaris and Kanungos including some of the appellants filed representations to the State in the year 2019 that incorrect principle was applied for drawing the seniority list of Patwaris in the year 2000. They raised an issue that the seniority was required to be determined on the basis of executive instructions dated 30.06.1997 i.e. on the basis of merit of candidates in the Patwar/Departmental examination and training conducted by the Department. On examining the matter, the State found the seniority list of Patwaris issued on 7.01.2000 and 25.07.2019 to be defective. The seniority list of Patwaris was ordered to be redrawn vide Office Memo dated 20.02.2020 on the basis of executive instructions dated 30.06.1997.

v) It is well settled principle of service jurisprudence that settled seniority positions cannot be unsettled after long lapse of time. In Dayaram Asanand Gursahani vs. State of Maharashtra & others,  (1984) 3 SCC 36, in absence of satisfactory explanation for delay of nine years in questioning under Article 226 of the Constitution of India, the validity of seniority assigned to the petitioner, his claim in that regard was held not entertainable.

In B.S. Bajwa & another vs. State of Punjab & others, (1998) 2 SCC 523, a grievance was raised about seniority positions by the incumbents in the year 1984 though they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other persons. The Apex Court held that inter se rights had crystallised which ought not to have been reopened after the lapse of such a long period; At every stage, the others were promoted, seniority positions were known to the aggrieved incumbents right from the beginning. It was held that in service matters the question of seniority should not be reopened in such situations after lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. Inordinate delay in making a grievance is sufficient in itself to decline interference under Article 226 of the Constitution and to reject the writ petition.

The aforesaid pronouncements were considered by the Hon'ble Apex Court in Ajay Kumar Shukla & others vs. Arvind Rai & others, Civil Appeal No. 5966 of 2021 along with connected matter, decided 08.12.2021, where the seniority list in question was held to have been prepared in contravention to the Recruitment & Promotion Rules. Hon'ble Apex Court held that the appointing authority would be bound by the Statutory Rules and any violation in this regard to the Statutory Rules would vitiate the seniority list. The same would be arbitrary, de hors the Rules and in conflict with Articles 14 & 16 of the Constitution. The only exception to above would be where there is unreasonable delay which is unexplained.

In this case, the seniority positions finalized on 7.01.2000 and accepted by all concerned were to be altered by the State vide Office Memo dated 20.02.2020. The purported premise for alteration was that incorrect principle was adopted by the State for framing the seniority list on 7.01.2000. Whether the reason assigned was justified, correct or not; whether the State had drawn correct seniority list in the year 2000 or not, is not important at this stage. What is significant is that more than twenty years have gone by from the date of finalization of first seniority list of Patwaris drawn on 7.01.2000. This seniority list has been accepted by all concerned including the appellants for more than twenty years. It has been acted upon by the State during all this period. Promotions of the incumbents have been effected on the basis of this seniority list. Therefore, on that ground alone, the seniority list finalized on 7.01.2000 could not have been altered in the year 2020.

In the instant case, seniority list was drawn on 7.01.2000 purportedly on the basis of Rules 15(A) & (B) of the 1992 R&P Rules. It is not that the list was contrary to the R&P Rules. The only thing that can be said at best is that Rules were not very happily worded. Be that as it may, the appellants are deemed to have knowledge of the seniority list, their seniority positions as well as the principle on which the seniority list was drawn. Merely saying now that appellants were not aware of the seniority list or that they ranked junior to the writ petitioners in that seniority list, is not sufficient explanation to unsettle the settled seniority positions. For more than twenty years, the seniority list was accepted and acted upon. Promotions had also been made on the basis of the seniority list. The appellants have failed to give cogent reasons for not assailing the seniority list within a reasonable period. The redrawal of seniority list after more than twenty years would not just affect a person or two but the seniority positions of more than 45 persons would be upset. The settled seniority position could not be unsettled. In R.S. Makashi & others vs. I.M. Menon & others, (1982) 1 SCC 379, writ petition was filed eight years after circulation of seniority list challenging the principles on which it was drawn. The Court held that belated petitions challenging the principles of seniority was not maintainable.

Malcom Lawrence Cecil D'Souza vs. Union of India & others, (1976) 1 SCC 599, holds that it is essential that anyone who feels aggrieved with an administrative decision affecting one's seniority should act with due diligence and promptitude and not sleep over the matter. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.

K.A. Abdul Majeed vs. State of Kerala & others, (2001) 6 SCC 292 holds that after a long lapse of time the question of initial appointment could not be reopened at the instance of the respondent No. 4s and that too for altering his seniority.

Shiba Shankar Mohapatra & others vs. State of Orissa & others, (2010) 12 SCC 471, has held as under:

"30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In [K.R. Mudgal & others vs. R.P. Singh & others, (1986) 4 SCC 531], this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."

80. Learned senior counsel appearing for respondent No. 4 placed reliance upon judgment rendered by Hon'ble Apex Court in C. Jayachandran v. State of Kerala, (2020) 5 SCC 230, wherein Hon'ble Apex Court held that for delay on the part of the employer in deciding the representation, employee cannot be held liable, since employee has no control over employer in such matters. Hon'ble Apex Court further held that delay in representation of employee cannot defeat the rights of the employee to claim seniority from the date, when other candidates were selected pursuant to the same selection process and such employee would be entitled to notional appointment and consequential benefit.

81. Mr. Bhushan, learned senior counsel while referring to said judgment attempted to argue that since respondent No. 4 had no control over employer in such matter, delay in deciding representation by employer cannot defeat right of employee to claim seniority.

82. This court finds no application of aforesaid judgment in the present case. Though, there cannot be any quarrel with proposition of law laid down in aforesaid judgment that employee cannot be made to suffer on account of delay on the part of employer in deciding representation, if any, made for seniority, however, in the instant case, prayer made by respondent No. 4 for grant of seniority with effect from 16.11.2009, otherwise, could not have been considered by department as discussed in detail above, rather, as per appointment letter and rule 18 of Himachal Pradesh Police Rules, said respondent was entitled for seniority with effect from 25.11.2013 i.e. date of joining the service, which was otherwise, mentioned in the Notification appointing him to HPPS cadre.

83. Mr. Bhushan, also placed reliance upon judgment Sanjay Dhar v. J & K PSC (2000) 8 SCC 182, Sashidhar Reddy Sura v. State of A.P., (2014) 2 SCC 158, Lakshmana Rao Yadvali v. State of A.P. (2014) 13 SCC 393, Balwant Singh Narwal v. State of Haryana,(2008) 7 SCC 728 and Pilla Sitaram Patrudu v. UOI, (1996) 8 SCC 637.

84. All the aforesaid judgments if read in their entirety reveal that candidate if not wrongfully appointed is entitled to notional seniority from the date, he was otherwise ought to have been appointed.

85. Since in the case at hand, respondent No. 4, came to be inducted in HPPS in place of Mr. Kapil Tomar, in the year 2013, on the basis of request made by him, and pursuant to order issued in this regard, he joined on 25.11.2013, no wrong otherwise can be said to have been caused to respondent No. 4, rather, in the case at hand, Department de hors the rules, ordered induction of respondent No. 4 in HPPS.

86. Similarly, reliance placed by learned senior counsel for respondent No. 4 in State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821, is wholly misplaced. In the aforesaid case, Hon'ble Apex Court held that there could be individual cases, where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out, while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual.

87. In the instant case, respondent No. 4 participated in HPAS Examination-2007, but on account of over all merit was offered post of BDO, which he joined. After two years of his having joined the post of BDO, he made a representation to Department concerned, to appoint him against the post of HPPS, vacated by Mr. Kapil Tomar, who was selected against the post of HPPS (Scheduled Caste category) on account of having cleared HPAS Examination-2007. Though request for induction on the post vacated by Mr. Kapil Tomar, otherwise could not have been entertained for the reasons discussed in earlier part of the order, but yet the Department accepted the prayer of respondent No. 4 and ordered his induction on 14.11.2013, which offer was accepted by respondent No. 4 and he joined on 25.11.2013. While issuing Notification dated 14.11.2013, respondent No. 4 was put to notice that his seniority would be determined from the date of joining the post.

88. However, subsequently department ignoring aforesaid condition accepted the prayer made on behalf of respondent No. 4 to assign seniority from back date, to which he was not entitled to, for the reasons stated herein above. Hence, aforesaid judgment is not applicable to the facts of present case.

89. Similarly, reliance placed upon judgment dated 12.12.2019, rendered in CWPOA No. 2059 of 2019, titled Ajay Kumar Kapoor v. State of H.P., has no application in the case at hand. In the said case, this court held, the appointment of the petitioner therein got delayed on account of no fault on his part, rather, fault, if any, was of Department, as such, petitioner could not be allowed to suffer on account of denial of seniority to said person by the Department.

90. As has been discussed herein above, there was no delay if any on the part of administrative department in offering appointment to respondent No. 4, rather, after having cleared HPAS Examination-2007, he rightly came to be offered appointment as BDO, in the year 2009. It is only after vacation of one post of HPPS by Kapil Tomar, that respondent No. 4 being next in merit, came to be offered post of HPPS. Once, he joined HPPS on 25.11.2013, coupled with the fact that post qua which respondent No. 4 was appointed, remained occupied with effect from 27.11.2009 to 19.6.2010, prayer made on his behalf for grant of seniority qua such period could not have been considered otherwise also.

91. Consequently, in view of detailed discussion made herein above, as well as law taken into consideration, this court finds merit in the petition and same is allowed. Impugned order dated 10.11.2020 (Annexure P-12) is quashed and set aside. Consequences to follow. No order as to costs. All pending applications stand disposed of. Interim directions, if any, stand vacated.