IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 4143 of 2010 & connected matters. Decided on: October 25, 2010. 1. CWP No. 4143 of 2010. Hem Singh Versus State of H.P. & ors. 2. CWP No. 3232 of 2010. Inder Pal Versus State of H.P. & ors. 3. CWP No. 3235 of 2010. Kishan Chand Versus State of H.P. & ors. 4. CWP No. 3236 of 2010. Dharam Pal Versus State of H.P. & ors. 5. CWP No. 3238 of 2010. Om Chand Versus State of H.P. & ors. 6. CWP No. 3239 of 2010. Gian Chand Versus State of H.P. & ors. 7. CWP No. 3240 of 2010. Rajinder Kumar Versus State of H.P. & ors. 8. CWP No. 3256 of 2010. Attar Chand Versus State of H.P. & ors. 9. CWP No. 3257 of 2010. Ram Chand Versus State of H.P. & ors. 10. CWP No. 3258 of 2010. Virender Kumar Versus State of H.P. & ors. 11. CWP No. 3259 of 2010. Om Prakash Versus State of H.P. & ors. 12. CWP No. 4035 of 2010. Parma Nand Versus State of H.P. & ors. 13. CWP No. 4139 of 2010. Jindu Ram Versus State of H.P. & ors. 14. CWP No. 4140 of 2010. Satya Devi Versus State of H.P. & ors. 15. CWP No. 4141 of 2010. Lachhu Ram Versus State of H.P. & ors. 2 16. CWP No. 4374 of 2010. Devi Chand Versus State of H.P. & ors. 17. CWP No. 4414 of 2010. Tara Singh Versus State of H.P. & ors. 18. CWP No. 4836 of 2010. Prakash Chand Versus State of H.P. & ors. 19. CWP No. 4860 of 2010. Gorkhu Ram Versus State of H.P. & ors. 20. CWP No. 5536 of 2010. Hem Raj Versus State of H.P. & ors. 21. CWP No. 4862 of 2010. Durga Dass Versus State of H.P. & ors. 22. CWP No. 4863 of 2010. Prem Singh Versus State of H.P. & ors. 23. CWP No. 5724 of 2010. Sarwan Kumar & Ors. Versus State of H.P. & ors. 24. CWP No. 5725 of 2010. Durga Dass Versus State of H.P. & ors. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes. For the petitioner(s): Mr. A.K Gupta, Advocate. For the Respondents: Mr. R.K.Bawa, AG, with Mr. Ankush Dass Sood, Addl. A.G. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (Oral) The petitioners in all these cases are aggrieved on three grounds:- (1) Their seniority which has been settled in the year 1996 has been unsettled; (2) The pay has been re-fixed and (3) Consequential recovery. 2. All the petitioners joined service as Technicians on daily wages. All of them have been regularized from the year 1994 onwards. On 3 such regularization the seniority was fixed based on the age of the incumbent concerned. Apparently, realizing the mistake that the crucial factor of date of joining service was ignored, steps were taken to rectify the same and redraw the seniority. It appears that there have been various intra departmental communications. But, it is not clear from the reply as to whether before thus recasting the seniority, the petitioners were given an opportunity to submit their objections. True, it is stated in the reply that a provisional seniority list as on 31.5.2009 on the basis of the date of joining as daily wagers was circulated as per letter No. 927-33, dated 22.4.2010 inviting objections, but no objections were received and hence the seniority list has been finalized by proceedings dated 25.5.2010. 3. But the question is whether before deciding to reopen the unsettled seniority, an opportunity was given to the aggrieved parties. 4. Seniority, it is a well settled principle, is to be based on either the date of joining duty in the regular service or on the date of advice for the job which is based on the position in the select list, unless otherwise prescribed in accordance with law. If two or more persons join on the same day, their interse seniority has to be fixed based on their age, the older in age being placed above the younger. That is the only situation where age becomes a relevant factor in fixing the seniority. It is also another settled principle that seniority once duly and properly settled, will not normally be reopened. However, if for some demonstrably wrong factual or legal mistakes the same has to be reopened, before deciding to do so, notice has to be given to the affected parties. Yet another principle is that once the seniority has been finalized as per the direction of the Court or where seniority list has the approval of the Court, the same cannot be unsettled otherwise than through a judicial process. 5. All the petitioners belong to Sunder Nagar/Hamirpur Circle. and seniority has been finalized by the Superintending Engineer. It is the 4 stand of the Superintending Engineer that the steps were taken as per the clarification issued by the Government and second respondent. But the moot question pointed out by the learned counsel for the petitioners is that no notice prior to the decision was given to the persons who had enjoyed the benefit of settled seniority for quite a few years. If it is realized at any stage that there is a mistake in the settled seniority list, the very reopening process itself can be only after giving an opportunity for hearing. 6. All the consequential action regarding the refixation, recovery are on account of refixation of the seniority list which are only dependant actions. In the above circumstances, these writ petitions are disposed of as follows: Annexure A-1, notice issued to the petitioners shall be treated as a notice on the proposal for reopening the settled seniority list on the basis of date of joining duty. In case any of the petitioners has any objection to such reopening of the seniority issue, they may file their objections before the Superintending Engineer, I & PH, Circle Sunder Nagar/Hamirpur within a period of six weeks from today. The Superintending Engineer/competent authority shall consider those objections in accordance with law and pass appropriate orders thereon within another two months. In case any of the petitioners requests for an opportunity for hearing, the same shall also be granted at the time of presentation of the objections, as above. Depending on the orders thus passed by the competent authority, it will be open to the respondents to take appropriate further action. 7. However, one aspect which requires clarification is on the justification for recovery as a dependant action. It is now fairly settled law that recovery of the benefits already paid to the workmen would be permissible only if the same has arisen on account of fraud, misrepresentation or bonafide mistake. If it is a matter of bonafide mistake, 5 the steps have to be taken for rectifying the mistake within a reasonable period. (See the decision of the Supreme Court in Syed Abdul Quadir and Others versus State of Bihar and Others (2009) 3 SCC 475. ) In the case of the petitioner herein, the recovery as proposed does not fall in any of the grounds. It is the respondents who fixed the seniority and it is based on that seniority fixed, may be on wrong premises, the 20%, 30% and 50% bifurcation was done and on the basis of such bifurcation, the petitioners were actually paid their wages. In case the very basis of such bifurcation is to be changed on a permissible ground, in that case it cannot be said that the amounts already paid to the petitioners on the basis of the bifurcation already done on a principle once adopted by the department though erroneously, is justifiable. Therefore, we make it clear that in either case, there shall be no recovery of the emoluments already paid to the petitioners. As far as refixation is concerned, we make it clear that the refixation already made would be subject to the result of the action as above to be taken by the Superintending Engineer/competent authority. In case the order passed by the authority is in favour of the petitioners, the refixation already done shall be ignored and the petitioners shall be paid their wages as per the original fixation done in the year 1996. The needful, as above, shall be done within another two months. 8. With these observations, the Writ Petitions are disposed of, so also the pending application(s), if any. Copy Dasti. (Justice Kurian Joseph), Chief Justice. October 25, 2010. ( Justice Kuldip Singh ), (karan/vs) Judge.