KULDIP CHAND versus UNION OF INDIA AND ORS.

Citation: [1995] SUPP. 3 S.C.R. 45 · Decided: 24-08-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Dismissed

Judgment (excerpt)

. . 
.. 
KULDIP CHAND 
A 
v. 
UNION OF INDIA AND ORS. 
AUGUST 24, 1995 
(K. RAMASWAMY AND B.L. HANSARIA, JJ.} 
B 
Se1vice Law: 
Seni01it;--Promotion-Fortuitous se1vice cannot be reckoned for 
seni01it;--Seniority list-Illegal preparation of-Representation agailist-
C 
Rejection-Delay in filing writ petition-Held mere rejection of representation 
does not disentitle to claim seni01ity against his non-consideration for promo-
tion. 
Respondent-4 was appointed on November 29, 1976 as octroi Mohar-
rar in the pay scale of Rs. 110-250 and was posted as a Clerk on March 1, D 
1984. In 1982 the posts of Octroi Moharrars and Clerks were fused and 
redesignated as Clerks. Respondent-4 claimed promotion to the post of 
accountant vis-a-vis the appellant who was appointed as Sanitary Super-
visor on August 29, 1973 in the pay scale of Rs. 100-160, promoted as Clerk 
on February 5, 1979 and fortuitously posted as a Storekeeper in the pay E 
scale of Rs. 510-800. His claim was accepted by the High Court. Hence this 
appeal. 
Dismissing the appeal, this Court 
HELD : 1. Admittedly Resiwndent-4 has been working as a Clerk F 
since inception, viz. November 29, 1976. On the other hand the appellant 
was appointed as a Clerk on February 5, 1979 and had not been promoted 
to the post of Storekeeper in his own right but came to be posted by way 
of fortuitous circumstances and continued to work on that post. Therefore 
it would not be a ground to claim seniority over Respondent-4. The High G 
Court, therefore, was right in its conclusion that the fortuitous cir-
cumstance of the appellant working as a store-keeper cannot permit him 
to have a march over the 4th respondent. [47-B-C] 
2. The mere fact that Respondent-4 did not challenge the seniority 
list, which was illegally prepared, till be was aggrieved by non-considera- H 
45 
46 
SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R. 
A 
tion of the claim to the post of accountant, his legitimate right to be 
considered cannot be denied. Consequently the delay is of no consequence 
for considering his claim. [47-F-G] 
B 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7926 of 
1995. 
From the Judgment and Order dated 22.11.91 of the Himachal 
Pradesh High Court in C.W.P. 267 of 1991. 
V.M. Issar and M.M. Kashyap for the Appellant. 
C 
B.S. Charya, S.C. Paul and J:D. Jain for t,he Respondent No. 4. 
D 
E 
F 
G 
N.N. Goswami, Ms. Subhashini, Ms. Sushma Suri and Ms. Anil 
Katiyar for the Respondent Nos. 1-3. 
The following Order of the Court was delivered : 
Leave granted. 
On 1st January, 1991 when the post of Accountant became vacant, 
Ashok Kumar, 4th respondent had staked his claim for consideration of 
his case for promotion contending that he was appointed on November 29, 
1976 as octroi moharrar in the pay scale of Rs. 110- 250 and that he was 
posted as clerk on March 1, 1984. By the proceedings of the competent 
authority, the post of octroi moharrar and clerks were redesignated as 
clerks in year 1982. Consequently he was working as a clerk from Novem-
ber 29, 1976. The post of clerk is a feeder post for consideration to the 
vacancy of accountant. He being.senior to the appellant, is better situated 
to be considered for the post of accountant. His claim was negatived. 
Consequently, when he approached the High Court of Himachal Pradesh 
in W.P. No. 267/91 by order dated November 22, 1991, the High Court 
accepted the claim and allowed the writ petition directing the Union of 
India to consider his case for promotion as an accountant vis-a-vis the 
claim of Kuldip Chand, which found favour with the authorities. The case 
of the appellant is that he was appointed as sanitary supervisor on August 
29, 1973 in the pay scale of Rs. 100-160. He was promoted as a clerk on 
February 5, 1979 and was posted as a store keeper in the pay scale of Rs. 
510-800. Ever since he has been drawing the same scale and is thus senior 
H to the 4th respondent. 
-
KULDIP CHAND v. U.0.1. 
47 
The question, therefore, for our consideration is : who is the senior A 
in the post of the clerk? Admittedly, post of clerk is a feeder post for 
promotion as an accountant. It is not in dispute that the posts of octroi 
moharrar and the clerk were fused and redesignated as clerks. In that view, 
it must be deemed that Ashok Kumar has been working as a clerk since 
inception, viz., November 29, 1976. The appellant admittedly was appointed 
as a clerk on February 5, 1979. The post of store keeper though was a 
specialis

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