2026:HHC:8193

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWPOA No.1026 of 2019

Decided on: 20

th

March, 2026

___________________________________________________________________

Yashpal Dhiman ....Petitioner

Versus

State of Himachal Pradesh and others ...Respondents

_____________________________________________________________________

Coram

Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge

Whether approved for reporting?

1

Yes

For the petitioner: Ms. Vandana Thakur, Advocate, vice

Mr. Surinder Saklani, Advocate.

For the respondents: Mr. Anup Rattan, Advocate General

with Mr. Sikander Bhushan, Deputy

Advocate General, for respondents

No.1 & 2-State.

Mr. Manish Sharma, Mr. Ompal and

Ms. Ridhima, Advocates, for

respondents No.9 and 10.

Respondents No.3 to 7, 8 and 11

already ex-parte vide order dated

11.03.2022.

Jiya Lal Bhardwaj, Judge (Oral)

By way of present petition, the petitioner has

prayed for the following substantive reliefs:-

“(a)That the entire record pertaining to the instant case

may kindly be summoned and subjected to scrutiny by this

Hon’ble Court.

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Whether reporters of Local Papers may be allowed to see the judgment?

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(b)That this Hon’ble Court may kindly be pleased to issue

a writ in the nature of certiorari, quashing the final seniority

list appended along with the memorandum dated 09

th

July,

2012 (Annexure P-6) with all consequences.

(c)That this Hon’ble Court may very kindly be pleased to

issue a writ in the nature of mandamus and to direct the

respondents to redraw the seniority list by restoring the

seniority of the present petitioner, above the respondent

No.3 herein, as per the tentative seniority list (Annexure P-4)

with all consequential benefits arising there from, including

promotion etc.”

2. The precise grouse raised by the petitioner in the

present petition is that as per the provisional seniority list of

Assistant Engineer (Electrical), circulated vide Office

Memorandum dated 01.12.2011 (Annexure P-4), he was

assigned seniority at serial No.2. However, when the final

seniority list was circulated vide Memorandum dated 09.7.2012

(Annexure P-6), his seniority position was changed to Sr. No.15

and private respondents have been shown senior, though, he

was promoted to the post of Assistant Engineer (Electrical)

earlier to them.

3. As per the averments made in the petition, the

petitioner was appointed as Junior Engineer (Electrical) with the

3

respondent-Department on 17.06.1979. The petitioner belongs

to Scheduled Caste (SC) category.

4. In the year 1993, the respondent-Department

decided to fill up 4 posts of Assistant Engineer (Electrical), which

is the next promotional post from the post of Junior Engineer

(Electrical).

5. Though the petitioner had rendered 7 years of

service as Junior Engineer (Electrical) and was eligible for being

considered for promotion to the post of Assistant Engineer

(Electrical), but his candidature was not considered, which

forced him to approach the erstwhile Himachal Pradesh

Administrative Tribunal by filing an original application, which

was transferred to this Court and registered as CWP(T) No.4067

of 2008, titled, Yash Pal Dhiman vs. State of H.P. and others.

This Court had allowed the said petition vide judgment dated

23.12.2010, directing the respondent-Department to convene

the review DPC within two months from the date of supply of

copy of the judgment and the competent authority shall

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consider the case of the petitioner as on 12.11.1993 for

promotion from the post of Junior Engineer (Electrical) to the

post of Assistant Engineer (Electrical) in Scheduled Caste

category together with the case of any other eligible Scheduled

Caste category Junior Engineer (Electrical) senior to him along

with respondents No.3 to 5 in the said writ petition.

6. In sequel to the directions given by this Court, the

respondents had promoted the petitioner to the post of

Assistant Engineer (Electrical), vide office order dated

06.07.2011 (Annexure P-2) and his date of promotion was

shown as 31.12.1991. After his promotion to the post of

Assistant Engineer (Electrical), the petitioner had made a

representation dated 15.07.2011 (Annexure P-3) for

implementation of the promotion order. Thereafter, vide office

memorandum dated 01.12.2011, provisional seniority list of

Assistant Engineer (Electrical) as on 31.10.2011 was circulated,

inviting objections from the persons aggrieved by the

provisional seniority list and in the said seniority list, the

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petitioner was assigned Seniority at serial No.2.

7. The respondents-Department after considering the

representations made by the private respondents, except

respondent No.5, issued a final seniority list of Assistant

Engineer (Electrical) as on 31.10.2011, vide Memorandum dated

09.07.2012 (Annexure P-6) and in this final seniority list, the

petitioner was assigned seniority at Sr. No.15.

8. The petitioner is aggrieved by seniority list

(Annexure P-6), wherein he was assigned seniority at Sr. No.15

and further by assignment of the seniority, to other

respondents, above him.

9. The petitioner has averred in the petition that the

final seniority list is violative of principles of natural justice since

the petitioner was not heard in the matter and the same has

been unilaterally changed, behind the back of the petitioner.

The principle of audi alteram partem has not been adhered to.

10. It has further been averred that the seniority list

(Annexure P-6) issued is contemptuous for the reason that this

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Court while deciding the petition, held that the petitioner had

wrongly been omitted to be promoted in the year 1993 and the

said anomaly deserves to be rectified by convening a review

DPC providing promotion to the petitioner along with all

consequential benefits.

11. Respondents No.1 and 2 filed reply to the petition

and admitted that after the directions given by this Court, the

review DPC was convened on 09.06.2011 and as per the

recommendation of the DPC, the petitioner was promoted as

Assistant Engineer (Electrical) w.e.f. 31.12.1991.

12. It has further been averred that as per the

provisional seniority list, there was great ambiguity in fixing the

seniority of Assistant Engineers (Electrical) of reserved category

viz the petitioner, who was assigned seniority at Sr. No.2,

whereas he should have been assigned seniority below

Surender Kumar, P.R. Bisht, N.K. Gandotra and I.C. Sharma, for

the reasons that though the petitioner being from Scheduled

Caste category, was promoted prior to them, but after their

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promotion, the original seniority in the entry cadre of Junior

Engineers (Electrical) will have to be assigned to them.

13. The respondents-State have also placed reliance

upon the instructions dated 27.03.1997 (Annexure R-3), which

clearly provides that in case a person from General Category is

promoted after reserved category candidate, he regain the

seniority as per the entry level.

14. Respondent No.10 filed a separate reply and

averred that he belongs to category of Diploma holders and is

to be considered for further promotion to the post of Executive

Engineer (Electrical) against 30% quota prescribed for diploma

holder Engineers. Since respondent No.10 was also promoted

as Assistant Engineer (Electrical), before the petitioner could be

considered for further promotion under Scheduled Caste

category and also the petitioner a roster point promotee as

reserved cannot be considered senior, since respondent No.10

was senior to the petitioner in the entry grade of Junior

Engineer (Electrical) and he had regained his seniority on the

8

principle of “catch-up”, as he had caught up the petitioner in the

cadre of Assistant Engineer. Thus, respondent No.10 has rightly

been placed at Sr. No.12, above the petitioner, who was

assigned seniority at serial No.15.

15. The petitioner has not filed rejoinder to the replies

filed by the respondents.

16. I have heard the learned counsel for the parties and

also perused the record carefully.

17. It is not in dispute that the petitioner was appointed

as Junior Engineer later than the private respondents.

18. It is settled law that once the person from General

Category is promoted to the higher post after the candidate

from the reserved category, he regains seniority on the

principle of "catch-up" as per the law enunciated in Union of

India and others versus Virpal Singh Chauhan and others ,

(1995) 6 SCC 684. The principle enunciated in Virpal Singh

Chauhan’s case (supra) was followed by a three-Judge Bench of

the Hon’ble Supreme Court in Ajit Singh Januja and others vs.

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State of Punjab and others, (1996) 2 SCC 715 and held that a

balance has to be maintained so as to avoid reverse

discrimination and a rule or circulation which gives seniority to a

candidate belonging to a reserved category promotee on the

basis of the roster point would violate Articles 14 and 16 of the

Constitution of India.

19. The Hon’ble Supreme Court, however, in a

subsequent judgment in Jagdish Lal and others vs. State of

Haryana and others, (1997) 6 SCC 538, took a contrary view and

held that by virtue of the principle of continuation officiation, a

candidate belonging to the reserved category, who is promoted

earlier than a General candidate due to an accelerated

promotion, would not loose seniority in the higher cadre.

20. This conflict of decisions was resolved by the

Constitution Bench in Ajit Singh and others (II) vs. State of

Punjab and others, (1999) 7 SCC 209. The relevant paragraphs

whereof are as under:-

“77.We, therefore, hold that the roster-point promotees

(reserved category) cannot count their seniority in the

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promoted category from the date of their continuous

officiation in the promoted post, - vis-à-vis the general

candidates who were senior to them in the lower category

and who were later promoted. On the other hand, the senior

general candidate at the lower level, if he reaches the

promotional level later but before the further promotion of

the reserved candidate - he will have to be treated as senior,

at the d promotional level, to the reserved candidate even if

the reserved candidate was earlier promoted to that level.

We shall explain this further under Point 3. We also hold that

Virpal and Ajit Singh have been correctly decided and that

Jagdish Lal is not correctly decided. Points 1 and 2 are

decided accordingly.

78 to 80 xxxxx

81.As accepted in Virpal (see SCC at p. 702) and Ajit Singh

(see SCC at p. 729), we hold that in case any senior general

candidate at Level 2 (Assistant) reaches Level 3

(Superintendent Grade II) before the reserved b candidate

(roster-point promotee) at Level 3 goes further up to Level 4

in that case the seniority at Level 3 has to be modified by

placing such a general candidate above the roster

promotee, reflecting their inter se seniority at Level 2.

Further promotion to Level 4 must be on the basis of such a

modified seniority at Level 3, namely, that the senior general

candidate of Level 2 will remain senior also at Level 3 to the

reserved candidate, even if the latter had reached Level 3

earlier and remained there when the senior general

candidate reached that Level 3. In cases where the reserved

candidate has gone up to Level 4 ignoring the seniority of

the senior general candidate at Level 3, seniority at Level 4

has to be refixed (when the senior general candidate is

promoted to Level 4) on the basis of when the time of

reserved candidate for promotion to Level 4 would have

come, if the case of the senior general candidates was

considered at Level 3 in due time. To the above extent, we

11

accept the first part of the contention of the learned counsel

for the general candidates. Such a procedure in our view will

properly balance the rights of the reserved candidates and

the fundamental rights guaranteed under Article 16(1) to the

general candidates.

82.One of the objections raised before us and which

appealed to the Full Bench in Jaswant Singh case was that

this "catch-up" principle would lead to frequent alteration of

the seniority list at Level 3. We do not find any difficulty in

this behalf. The seniority list at Level 3 would have only to be

merely amended whenever the senior general candidate

reaches Level 3.”

21. The Constitution Bench again had the occasion to

consider the principle of "catch-up" in M. Nagaraj and others vs.

Union of India and others, (2006) 8 SCC 212, after the

incorporation of Article 16(4-A) in the Constitution, which

provides that nothing in the Article shall prevent the State from

making any provision for reservation in matters of promotion

with consequential seniority to any class or classes of post in the

services, under the State, in favour of the Scheduled Caste and

the Scheduled Tribes, which in the opinion of the State, are not

adequately represented in the services under the State.

However, it was held that the "catch-up" Rule and the concept of

the consequential seniority are essential concepts in services

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jurisprudence. Thus, they cannot be elevated to the status of a

constitutional principle. Therefore, neither the "catch-up" Rule

nor “consequential seniority” is implicit in Clauses (1) and (4) of

Article 16 of the Constitution.

22. Again the Hon’ble Supreme Court in S. Panneer

Selvam and others vs. State of Tamil Nadu and others, (2015)

10 SCC 292, had the occasion to deal with the similar

preposition and held that consequential seniority of such

reserved category promotees can be fixed only if there is

express provision for such reserved category promotees in the

State Rules. The relevant para of the judgment reads as under:-

“26.The true legislative intent under Article 16(4-A) of the

Constitution is to enable the State to make provision or

frame rules giving consequential seniority for the

accelerated promotion gained based on the rule of

reservation. Rule 12 evidently does not provide for the

consequential seniority for reserved category promotees at

any point of time. The consequential seniority for such

reserved category promotees can be fixed only if there is

express provision for such reserved category promotees in

the State rules. In the absence of any specific provision or

policy decision taken by the State Government for

consequential seniority for reserved category accelerated

promotees, there is no question of automatic application of

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Article 16(4-A) of the Constitution.”

23. However, in the present case, there is no instruction

to count the seniority, but on the contrary the instructions

dated 27.03.1997 says otherwise.

24. Thereafter in B.K. Pavitra and others vs. Union of

India and others, (2017) 4 SCC 620, the Hon’ble Supreme Court

again reiterated the same view and rejected the plea that

seniority was not a fundamental right and the "catch-up" Rule

fully applies. The relevant para of the judgment reads as under:-

“29.It is clear from the above discussion in S. Panneer

Selvam case that exercise for determining "inadequacy of

representation", "backwardness" and "overall efficiency", is a

must for exercise of power under Article 16(4-A). Mere fact

that there is no proportionate representation in promotional

posts for the population of SCs and STs is not by itself

enough to grant consequential seniority to promotees who

are otherwise junior and thereby denying seniority to those

who are given promotion later on account of reservation

policy. It is for the State to place material on record that

there was compelling necessity for exercise of such power

and decision of the State was based on material including

the study that overall efficiency is not compromised. In the

present case, no such exercise has been undertaken. The

High Court erroneously observed that it was for the

petitioners to plead and prove that the overall efficiency was

adversely affected by giving consequential seniority to junior

persons who got promotion on account of reservation. Plea

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that persons promoted at the same time were allowed to

retain their seniority in the lower cadre is untenable and

ignores the fact that a senior person may be promoted later

and not at the same time on account of roster point

reservation. Depriving him of his seniority affects his further

chances of promotion. Further plea that seniority was not a

fundamental right is equally without any merit in the

present context. In absence of exercise under Article 16(4-A),

it is the "catch-up" rule which fully applies. It is not necessary

to go into the question whether the Corporation concerned

had adopted the rule of consequential seniority.”

25. In the present case, when the tentative seniority list

was issued, no doubt, the petitioner was shown at Sr. No.2, but

when the representations made by the affected parties were

considered by the competent authority, it was noticed that

though the petitioner has been promoted to the post of

Assistant Engineer earlier to the private respondents, but in the

entry grade of Junior Engineer (Electrical), they were senior to

the petitioner. Further the petitioner was not promoted to the

next higher post, when the private respondents were promoted

and, therefore, as per the law laid down by the Constitution

Bench in Ajit Singh (II) case (supra), the private respondents

were rightly assigned the seniority above the petitioner and

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does not warrant any interference.

26. Admittedly, the petitioner has not laid challenge to

the instructions dated 27.03.1997, which clearly provides that

the person who is promoted from General Category after the

candidate from the reserved Category, regains seniority though

the person is promoted earlier to the General Category

candidate.

27. Since, there is no challenge to the notification and

even otherwise as per the settled preposition of law that after

promotion, the candidate from the General Category regains

seniority, there is no error having been committed by the

respondent-Department while issuing the final seniority list.

28. Consequently, I do not find any merit in the present

petition and the same is accordingly dismissed. However, there

shall be no order as to costs.

29. Pending application(s), if any, shall also stand

disposed of.

20

th

March, 2026 ( Jiya Lal Bhardwaj )

(ankit) Judge