C.W.P. No. 12387 of 1989 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 12387 of 1989 Date of Decision: Dec. 17,2010 Kesar Singh ............................................................. Petitioner Versus Presiding Officer, Industrial Tribunal, Ambala and others .............................................................. Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? Present: Mrs. Abha Rathore, Advocate for the petitioner. Mr. Munish Sharma, Advocate for Mr. Narender Hooda, Advocate for respondent Nos. 2 and 3. ... Ritu Bahri, J. This petition under Articles 226/227 of the Constitution of India has been filed for quashing operation of the Award dated 23.12.1988 (Annexure P-6) by which the order of regularization has been passed subject to availability of the regular post in the cadre. Admitted position in the above case is that the petitioner and respondent No.4 were appointed on the same date i.e. 31.7.1971 as work charged Head Mistry. The date of birth of petitioner is 10.3.1949 and that of respondent No.4 is 1.4.1950. Thus, the petitioner was senior in age on the C.W.P. No. 12387 of 1989 [ 2 ] date of appointment. On 18.6.1980, they were promoted as work charged Special Foreman. Respondent No.4 was appointed on regular basis vide order dated 28.8.1981. This benefit was not extended to the petitioner. He raised a demand notice and the matter was referred to the Industrial Tribunal. The Tribunal answered the reference in favour of the petitioner and observed that the right to regularization was subject to availability of regular post in the cadre. Copy of the Award dated 23.12.1988 is Annexure P-6. The petitioner was regularly appointed as Special Foreman on 3.11.1988. The next stage of promotion to which the petitioner and respondent No.4 were entitled to was Master Foreman/J.E. Ist Class. The petitioner in the writ petition has sought a modification in the Award to the extent that the service of the petitioner be regularized with effect from the date when his junior was regularized. The condition imposed in the award `subject to availability of regular post' is being sought to be modified. The petitioner has placed reliance on Annexure P-1 i.e. order dated 18.6.1980 whereby both the petitioner and respondent No.4 were promoted as work charged Special Foreman. The date of promotion of the petitioner and respondent No.4 being same, Mrs. Abha Rathore, counsel for the petitioner, has vehemently argued that petitioner being senior in age could not have been ignored for further promotion. Respondent No.4 being junior to the petitioner in age having been appointed and promoted on identical dates could not be treated as senior in service. The benefit of regularization as per the Award dated 23.12.1988 whereby his claim for regularization has been allowed should be made effective from the date his junior was made regular. In the written statement, the respondents have taken a stand that C.W.P. No. 12387 of 1989 [ 3 ] respondent No.4-Roshan Lal was promoted to the post of Assistant Foreman on 20.5.1977 whereas the petitioner was promoted to the said post on 24.5.1977. Again respondent No.4 was promoted as Special Foreman on 19.6.1980 whereas the petitioner was promoted to the said post on 25.6.1980. Respondent No.4 has not been impleaded as a party in the proceedings before the Tribunal, therefore, no finding against respondent No.4 has been recorded by the Tribunal. Mrs. Abha Rathore, counsel for the petitioner, has argued that from Annexure P1 it is clear that the promotional orders of petitioner and respondent No.4 had been issued on 18.6.1980. The joining dates in the relevant posts are different. Since the date of initial appointment and the date of promotion are identical, the date of joining will not make any difference to the seniority. Reliance has been placed on Supreme Court judgment in Tejinder Singh Sandhu v. The State of Punjab and others 1978(2) SLR 115 to contend that taking charge of a post earlier will not effect the seniority of the employees. Respondent No.4 was offered a regular post in the scale of `700-30-850/900-400-1100/50-1750 on 28.8.1981. The petitioner being senior had to approach the Labour Court. Benefit of regularization to the petitioner could not be beyond the date when respondent No.4 had been offered regular appointment i.e. on 28.8.1981. Ends of justice would meet by modifying the Award dated 23.12.1988 (Annexure P-6) to the extent that benefit of regularization be given to the petitioner with effect from the date when the person junior to him had been regularized i.e. 28.8.1981. The writ petition is allowed. A direction is given to the respondents to grant benefit of regularization to the petitioner with effect C.W.P. No. 12387 of 1989 [ 4 ] from 28.8.1981 with all consequential benefits within a period of three months from the date of receipt of a certified copy of this order. 17.12.2010 ( RITU BAHRI ) Rupi JUDGE