IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.346 of 2009 (S/S) Kishan Singh ………..Petitioner Versus State of Uttarakhand and others …….Respondents Shri R.C. Arya, learned counsel for the petitioner. Shri Anil Bisht, learned Brief Holder for the State/respondents. Dated: 28th November, 2011 Hon’ble V.K. Bist, J. Divisional Forest Officer, Chakrata Forest Division Kalsi, District Dehradun issued an advertisement on 14.07.2008 inviting application from the casual labourers for the posts of Forest Guard. The petitioner has worked continuously on daily wage basis w.e.f. 29.06.1991 to 2001 in Rever Range under the division of respondent no.3 and is still working as Beet Assistant Kotibeet Chakrata Forest Division Kalsi, Dehradun. In pursuance of the said advertisement, petitioner being a Scheduled Tribe applied and appeared in the examination held on 16.11.2008. On 17.11.2008, the respondents declared the result and the petitioner got 70% marks and stood in IVth position. Thereafter, appointment letters were issued to the selected candidates, but no appointment letter was issued to the petitioner. The petitioner came to know that appointment letters were also issued to those candidates, who were below to the petitioner in the merit list. Thereafter, on 17.02.2009, petitioner filed 2 his representation to the respondent no.3 stating therein that he has passed the written examination dated 16.11.2008 and got IVth position and the juniors to the petitioner, who have passed exam have been given appointment on the post of Forest Guard, but the petitioner has not been given the appointment. Thereafter, the petitioner filed the present writ petition for a direction to the respondents to consider the case of the petitioner by giving him appointment on the post of Forest Guard in Chakrata Forest Division Kalsi, District Dehradun. 2. The respondents have filed counter affidavit, in which they have come up with the case that the petitioner did not fall under the category of ‘Seasonal Workers’, therefore, at the time of declaration of result, a remark thereof was noted by the Selection Committee that in the matter of ‘Mustroll’ workers, further action will be taken after receiving instructions from the Chief Conservator of Forest, Human Resource Development and Personnel Management, Dehradun. The Chief Conservator of Forest, Manav Sansadhan Vikas Evam Karmik Prabandhan, Uttarakhand, Dehradun informed the respondents that Mustroll workers cannot treated as ‘Seasonal Worker’. Therefore, petitioner’s case was not considered. 3. The petitioner filed rejoinder affidavit. Learned counsel for the petitioner submitted that petitioner comes within the Zone of eligibility, as he is presently working as Beet Assistant Kotibeet, Chakrata Forest Division Kalsi Dehradun and the petitioner has passed the written examination with 70% marks, which was conducted for the post of Forest Guard on 16.11.2008. He further submitted that since the petitioner has passed the written examination, petitioner is fully eligible to be appointed as Forest Guard, it makes no difference that there is no vacancy advertised for the Scheduled Tribe Category. Learned counsel for the petitioner submitted that the only difference between Seasonal Worker and Daily Wager is that the Seasonal Worker is paid salary on month to month basis and the Daily Wage Worker is given salary only for the days he has worked and no payment is made to him for Sunday and holidays. Nature of work is also same. He submitted that in the present case, though petitioner was working on the daily wage basis, but he was paid wages for all days including holidays. He further submitted that apart from this, the respondents have also given appointment to the post of Forest Guard to such persons, namely, Manjeet Singh Rawat and Hridesh Kumar, who belong to General Category and have got less marks to the petitioner. 4. Learned Brief Holder for the State/respondents submitted that in view of the fact that the petitioner was working on daily wage basis and he was not treated as Seasonal Worker, he was not considered for appointment to the post of Forest Guard. He further submitted that in case appointment was wrongly given to some other employees, the petitioner cannot seek parity and his claim should not be accepted on this ground. 4 5. I have heard the submission of the learned counsel for the parties. It is true that petitioner has also worked in same manner in the department in which seasonal workers worked and were also paid wages for the whole month. Nature of work is also same. But, for the purpose of considering the claim of the petitioner for grant of relief, this Court is not considering the issue whether daily wage workers should be treated as seasonal workers. The Court is considering the issue, whether in pursuance of the same advertisement, some persons working on daily wage basis can be offered appointment and at the same time, appointment to similarly situated persons be denied. In my view, this cannot be done. The action of the respondents in refusing appointment to the petitioner, on the ground that he is Mustroll employee (daily wage employee), is discriminatory and illegal. The respondents cannot be permitted to take different stand for similarly situated candidates. 6. In view of above discussion, the Writ Petition is allowed. Respondents are directed to consider the case of the petitioner on the post of Forest Guard in the Forest Division Chakrata, Kalsi, District Dehradun in pursuance of advertisement dated 14.07.2008 within a period of six months from the date of production of certified copy of the order. (V.K. Bist, J.) Arpan 28.11.2011