IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 2265 of 2008 (OA No.656 of 1994 Judgment reserved on: 8.3.2010 Decided of decision: 29.3.2010 Ramesh Chand Sharma & Ors. ….. Petitioners. Vs. HPSFC & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioners : Mr. Virender Verma, Advocate vice Mr. Anand Sharma, Advocate. For the Respondents : Mr. V.B. Verma, Advocate and Mr. Bhupinder Thakur, Advocate, for respondents No.1 to 3 as also for private respondents No.7,8,10,19,20,23, to 25, 27,29,32,35,39,40, 42 to 45, 47, 48, 51 to 53, 55 to 59, 61, 63, 64 and 65. None for other respondents. Kuldip Singh, Judge. The petitioners in the petition have prayed for quashing of seniority list dated 3.6.1993 Annexure A-11 and decision dated 25.11.1993 Annexure A-10. The petitioners have also prayed that promotions made by respondents No.1,2 on the basis of various seniority lists circulated from time to time may be quashed. In alternative petitioners may be declared as promoted on the posts of Forest Guards from the date on which their juniors were promoted by Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… respondents No.1,2 with all consequential benefits like seniority and back wages. 2. The case of the petitioners is that they were employed as timber watchers in respondent No.1-Corporation w.e.f. 18.7.1982 on daily wages. The names of the petitioners were sponsored by different Employment Exchanges as required under the law. The petitioners were brought on the regular establishment of respondent No.1 vide memo dated 9.1.1986 Annexure A-1. The regularization of the petitioners was not in accordance as per instructions; the petitioners were entitled to regularization w.e.f. 1.8.1984 after rendering one year service with respondents. This anomaly was rectified by the respondents by issuing order dated 11.2.1988 and the petitioners were regularized w.e.f. 1.8.1984. The respondent No.3 had circulated a seniority list vide letter dated 18.2.1988 Annexure A-2 but the seniority list had not reflected correct positions of petitioners, they represented against seniority list circulated vide letter dated 18.2.1988, the error was rectified by respondent No.2 vide memo dated 23.5.1988 Annexure A-4. In the seniority list circulated with memo dated 23.5.1988 the petitioners were shown at proper places. 3. The respondent No.2 again circulated tentative seniority list of regular timber/resin watchers dated 3.10.1989 as it stood on 1.4.1989 Annexure A-5. The seniority positions of petitioners were again disturbed in tentative list dated 3.10.1989. It appears respondent No.2 had wrongly relied judgment dated 20.3.1984 in CWP No.362 of 1983, titled Viptu Ram and others vs, H.P. State …3… Forest Corporation etc. The question of seniority was never under consideration before the Court in the decision dated 20.3.1984. The respondent No.2 had misinterpreted the decision dated 20.3.1984 and gave undue advantage to respondents No.4 to 69. The petitioners had made a representation against seniority list dated 3.10.1989 but no decision was intimated to the petitioners. 4. The respondents No.1 to 3 without deciding the representations of the petitioners issued another seniority list of timber /resin watchers on 25.7.1991 as its stood on 1.4.1991 vide memo dated 25.7.1991 Annexure A-7 of respondent No.2. The respondents had not applied their mind while framing seniority list circulated vide memo dated 25.7.1991 Annexure A-7. The petitioners represented on 7.8.1991 against seniority list circulated vide memo dated 25.7.1991. The representation of the petitioners was rejected vide memo dated 9.10.1991. This was challenged by way of Original Application No.15 of 1992 before erstwhile Tribunal. On 3.4.1992 the Tribunal had ordered that Original Application be treated as an appeal to the Board of Directors of respondent No.1- Corporation and the same be decided after affording an opportunity of being heard to the petitioners. The respondent No.1 has ultimately decided the appeal and conveyed the decision to the petitioners vide memo dated 25.11.1993 Annexure A-10. 5. The respondents during the pendency of the appeal before Board of Director circulated another seniority list of timber /resin watchers on 3.6.1993 as existed on 31.5.1993 vide Annexure A-11. The respondents during pendency of the appeal had made …4… promotions on the basis of seniority list Annexure A-11 and 14 persons were promoted on the posts of Forest Guards which is wrong and illegal. It has been alleged that a person who has been regularized after 1.8.1984 cannot be made senior to the petitioners as has been done in the present case. The seniority is to be determined on the basis of length of service in the grade as is evident from bye- law 3.4 which deals with the seniority. It has been alleged that seniority list framed by respondents No.1,2 is illegal, arbitrary, the respondents No.29 and 66 have been wrongly given benefit of boy service. The persons who were working on other categories except timber/resin watchers cannot claim the benefit of the services rendered by them as peon/chowkidar etc. as the duties of chowkidars and peons were entirely distinct and different. The chowkidars who have worked in the field are subordinates of the resin/timber watchers and for the purpose of seniority they can not be equated with the category of resin/timber watchers. 6. The rejection of appeal by the Board of Directors of the petitioners is wrong and illegal. A person cannot be given a date of regularization when he was not at all regular on that date. The services rendered as daily wager, ad-hoc or on tenure basis cannot be counted towards seniority. The case of Viptu Ram and others was that they should be considered for regularization alongwith others. It was not their case that they should be regularized from the date of their initial engagement and their services rendered as daily wagers should be counted for the purpose of seniority. The stand of the respondents that the supervisors/ helpers and munshis were …5… having the same qualifications and the nature of the duties they were performing were similar to that of timber watchers is factually incorrect. On these grounds the petition was filed. 7. The respondents No.1 to 3 contested the petition and filed the reply. They have submitted that the representations of the petitioners were considered by the Board of Directors on merits and were rejected as there was no merit in the representations. The petitioners were brought on regular establishment in the year 1985. This order was passed promoting the petitioners prior to those who were senior to them and who were engaged on daily wages prior to the petitioners. The petitioners were regularized on the grounds that they were sponsored through Employment Exchanges. The decision dated 20.3.1984 in CWP No.362 of 1983 was not kept in view while regularizing the petitioners. The administrative instructions regarding regularization of daily waged timber/resin watchers recruited through Employment Exchanges after rendering one year of service in the Corporation became inoperative after the decision dated 20.3.1984 in CWP No.362 of 1983. Now all the daily waged timber/resin watchers whether recruited through Employment Exchanges or not were to be considered for regularization according to seniority on the basis of length of service. In view of decision dated 20.3.1984 the seniority list circulated earlier had to be revised which was done on 1.4.1991. This decision was also upheld by the erstwhile Tribunal in OA No.75 of 1988 decided on 18.5.1989, titled Kushal Kumar & Ors. V. H.P. State Forest Corporation & Ors. The entire position was again worked out and therefore, the petitioners were regularized w.e.f. …6… 1.8.1984. In the seniority list dated 1.4.1991, the petitioners were shown juniors as the persons who had joined on daily wages prior to them had to be shown senior to them since the petitioners were not required to be given the benefit of being sponsored by the Employment Exchanges. In CWP No.128 of 1984 titled Gehru Ram and others v. Himachal Pradesh State Forest Corporation on 2.5.1984 a statement was made by learned counsel on behalf of the Corporation in the Court that the respondent-Corporation has now adopted the Policy of such daily waged resin watchers who were duly eligible for promotion under the relevant rules in accordance with their seniority subject to the availability of posts and that all but one of the petitioners were eligible for promotion in accordance with the said policy. On the statement of learned counsel for the Corporation, the learned counsel for the petitioners withdrew the petition and the petition was dismissed as withdrawn. 8. The seniority list circulated on 1.4.1989 was also not correct because it contained the names of those persons also who were promoted prior to 20.3.1984. The decision dated 20.3.1984 affected only those persons who were on daily wages on 20.3.1984, therefore, a revised seniority list was circulated on 25.7.1991 as its stood on 1.4.1991. On the basis of this seniority list, petitioners were promoted from previous date i.e. 1.8.1984, the date from which their juniors were promoted, the representations of the petitioners were rightly rejected. The seniority list circulated on 3.6.1993 was based on the earlier revised seniority list as such the promotions were made rightly on the basis of same. The incumbents shown above the …7… petitioners stand regularized w.e.f. 1.8.1984 or prior to that. No person has been placed above the petitioners in the seniority list who was regularized after the petitioners. It has been submitted that discrepancies where ever found were corrected and instructions in this behalf were already issued to respondent No.2 to correct all the seniority lists and not to include any other category of daily wagers in the seniority of timber/resin watchers (daily wages). A revised seniority list would be issued in due course. The petitioners at initial stage were given the benefit of having their names sponsored by the Employment Exchanges, but later on in the seniority list on 1.4.1991 they have been shown juniors to those who were promoted after them retrospectively and the seniority was prepared in accordance with the Court judgment. The respondents No.1 to 3 have prayed for dismissal of the petition. 9. The respondent No.28 has also filed separate reply. He has submitted that he is senior to the petitioners as he was appointed on 20.4.1981. He is entitled to regularization w.e.f. 20.4.1982 whereas he was shown to have been regularized w.e.f. 7.1.1985 in the seniority list dated 25.7.1991 as its stood on 1.4.1991 Annexure A-7. The seniority list dated 25.7.1991 as its stood on 1.4.1991, seniority list dated 3.6.1993 as its stood on 31.5.1993 do not reflect the true position of respondent No.28 who is entitled to regularization w.e.f. 20.4.1982. 10. I have heard the learned counsel for the parties. The point involved in the lengthy petition of the petitioner is short. The petitioners are claiming that since they were recruited through …8… Employment Exchanges, therefore, they have preferential right of regularization as against those daily wage timber/resin watchers who were not recruited through Employment Exchange. It is also the case of the petitioners that in the seniority lists circulated with memo dated 23.5.1988 Annexure A-4 the error was rectified and petitioners were given proper places in the said seniority list but again the seniority list of petitioners as timber watchers was disturbed in subsequent seniority lists. The representations made by the petitioners against such seniority lists were wrongly considered and rejected. 11. On the contrary stand of respondents No.1 to 3 is that petitioners were regularized as timber watchers w.e.f. 1.8.1984. The earlier seniority lists were prepared on the basis of administrative instructions for the recruitment of timber watchers. In view of judgment dated 20.3.1984 in CWP No.362 of 1983 the administrative instructions regarding the regularization of timber watchers giving benefit to timber watchers, who were recruited through Employment Exchanges, were rendered inoperative. All the timber /resin watchers whether recruited through Employment Exchanges or not were to be considered for recruitment according to seniority on the basis of length of service. It has been submitted on behalf of respondents No.1 to 3 that keeping in view the length of service of timber/resin watchers recruited through Employment Exchanges or otherwise seniority list dated 25.7.1991 as its stood on 1.4.1991 was circulated. The seniority list circulated on 3.6.1993 was based on the earlier revised seniority list. The promotion made on the basis of seniority lists dated 25.7.1991 and 3.6.1993 were just and legal. On behalf of …9… respondents No.1 to 3 judgment dated 20.3.1984 in CWP No.362 of 1983, judgment dated 18.5.1989 in OA No.75 of 1988 of erstwhile Tribunal, the statement made by the counsel of the Corporation in CWP No.128 of 1984 decided on 2.5.1984 have been relied. 12. In CWP No.362 of 1983 the Division Bench had rejected the contention of the respondents that since the petitioners in that petition were not employed as daily-rated resin watchers after having been duly sponsored by the Employment Exchange, they are ineligible to be considered for promotion. It has further been held that the claim of petitioners in that petition for promotion from amongst the cadre of daily rated resin watchers cannot be rejected on the ground that their initial appointment as daily rated workmen was not made in compliance to clause (c) of Section 3 of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. In Original Application No.75 of 1988 decided on 18.5.1989 the contention of petitioners was that they have a prior and preferential claim to regularization as against the daily waged timber watchers who were not recruited through Employment Exchange. The petitioners of Original Application had sought directions to respondents of the Original Application to regularize the petitioners and other similarly circumstanced daily waged timber watchers with effect from the date of their appointments as such with all consequential benefits. The erstwhile Tribunal had considered the Recruitment and Promotion Rules, 1985 and after noticing decision in CWP No.362 of 1983 …10… has held that petitioners of the Original Application are not entitled to relief claimed by them and rejected the petition. 13. The Board of Directors of the Corporation on 12.10.1993 and 20.10.1993 in compliance to the directions of the erstwhile Tribunal dated 3.4.1992 had considered the case of the petitioners and rejected the plea of the petitioners vide communication dated 25.11.1993 Annexure A-10 that timber watchers engaged through Employment Exchanges should be made senior to those engaged otherwise is not sustainable in view of the judgment dated 20.3.1984 in CWP No.362 of 1983 and decision of the erstwhile Tribunal in OA No.75 of 1988. It was also observed that 10 Supervisors, Helpers and Munshis have been included in the list of daily wage timber/ resin watcher. The nature of duties being performed were also similar. Therefore, inclusion of their names in the seniority list of daily wage timber/resin watchers from the dates of their employment is justified. 14. The respondents No.1 to 3 in their reply have submitted that the seniority list has again been looked into and discrepancies found have been corrected and instructions in this behalf have already been issued to respondent No.2 to correct all the seniority lists and not to include any other category of daily wagers in the seniority of timber/resin watchers (daily wages). Therefore, in view of the stand of respondents No.1 to 3 in their reply the grievance of the petitioners has been set at rest by respondents No.1 to 3 themselves when it has been stated in the reply that instructions have been issued to respondent No.2 to correct all the seniority lists and not to include any other category of daily wagers in the seniority of …11… timber/resin watchers (daily wages). Therefore, no separate directions are required from this Court not to include any other category of daily wagers in the seniority of timber/resin watchers (daily wages). 15. The respondents No.1 to 3 have taken the stand that at initial stage the petitioners were given benefit of recruitment as timber watchers through Employment Exchanges, but later on in the seniority list on 1.4.1991 they have been shown juniors to those who were promoted after them retrospectively and seniority was prepared in accordance with the Court judgment. 16. There are two modes in accordance with the Recruitment and Promotion Rules, 1985 for appointments to regular posts of timber watchers, one by promotion, failing which by direct recruitment. For appointment by promotion, daily waged timber watchers who are Matriculates or equivalent, and those daily waged timber watchers who are Middle pass with five years of service as daily waged timber watchers are eligible. For appointment/promotion to the regular posts of timber watchers the person concerned should satisfy the eligibility conditions for promotion/appointment to the said post as prescribed in the Recruitment and Promotion Rules. Once a person is found eligible, then he has to be considered for promotion on the basis of his seniority reckoned from the date of joining as daily rated timber watcher. The fact that a person has been recruited through Employment Exchange or otherwise is not relevant at the time of promotion which is governed by the Recruitment and Promotion Rules. The petitioners have failed to make out any case …12… either for quashing seniority list dated 3.6.1993 Annexure A-11 or for quashing memo dated 25.11.1993 Annexure A-10. 17. No other point was urged. 18. In view of above discussion, the petition is liable to be dismissed and is accordingly dismissed. No costs. March 29, 2010 (Kuldip Singh), (sks) Judge. …13…