IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP (T) No. 7231 of 2008. Date of Decision : December 16, 2010 Kewal Krishan Petitioner Versus H.P. State Forest Corporation and others Respondents CWP (T) No.7251 of 2008. Ashok Kumar Petitioner Versus H.P. State Forest Corporation and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Ranjan Sharma, Advocate, for the petitioner. For the respondents : Mr. Bhupender Thakur, Advocate for respondents No.1 to 3. Sanjay Karol, J. (Oral) Both these petitions are disposed of by a common order as facts and question of law are same. 2. It is not in dispute that petitioners and private respondents (who have chosen not to contest the present petition) were engaged as Timber Watchers on Daily wages. It is also not in dispute that all Whether reports of Local Papers may be allowed to see the judgment? 2 were working in the same cadre which area falls with in the North zone subsequently created by respondent-Corporation. It appears that some time in the year 1985 a decision was taken by Himachal Pradesh State Forest Corporation, in it’s board meeting held on 22nd November, 1985 creating zone wise seniority in the cadre up to the level of Forest Guards. It is also not in dispute that petitioners were regularized as Timber Watchers prior to the regularization of the private respondents. According to the petitioners, private respondents were regularized in the North zone, whereas this fact is disputed by the Corporation. Be that as it may be, the fact of the matter is that petitioners were regularized prior to the regularization of the private respondents. It is also not in dispute that vide order dated 11th October, 1995 (Annexure A-6), private respondents who were otherwise Junior to the petitioners were promoted as Forest Guards. It is this action of the respondents which is impugned in the present petition. The impugned order is passed on the basis of order dated 7th August, 1995 of the respondent-Corporation. 3. The respondents have opposed the petition on the ground that the Posts in question were to be filled up on the basis of Seniority list prepared subsequent to the creation of Zones. The contention is based on the decision taken by the respondents in the meeting of the Board of Directors held on 22nd January, 1985. In my considered view, the contention needs to be rejected for the simply reason that minutes of the meeting of the Board of Directors do not amend the Bye Laws framed by the respondent-Corporation 3 in terms of which the Posts in question were required to be filled up which was on the basis of Seniority. 4. The applicability of the service Bye Laws on employees of the respondent-Corporation is not in dispute. Relevant Clause 3.4 (a) and 3.4 (b) of service Bye Laws reads as under :- “Clause 3.4 (a) (iv) (Board Decision Dated 22.5.1987) (iv) Seniority of Ex Servicemen on their re-employment in the service of the Corporation will be fixed in accordance with the instructions of H.P. Government in force from time to time. (b) Promotions. All promotions to posts under the Corporation shall be made on the basis of merit-cum-seniority and no person shall have a right to be promoted to any posts on the basis of seniority alone. Amendment to Clause 3.4 (b) (Board Decision Dated 31.3.1979). (b) “All promotions to the posts under the Corporation shall be made on the basis of seniority subject to fitness in respect of posts carrying maximum pay scale of Rs.900/-“. 5. Now, Bye Laws do not create any distinction Zone wise. They do not prescribe that Posts are to be filled up on the basis of Seniority list prepared Zone wise. They also do not lay down that the Posts are actually to be filled up Zone wise. It simply states that the Posts under the Corporation are required to be filled up on the basis of Seniority subject to fitness to be determined on the basis of length of service in the grade. It cannot be disputed that the Posts which the petitioners and private respondents were holding were in 4 the same grade. Consequently, action taken by the respondents is not sustainable in law. The respondents have also framed Rules known as “Recruitment and Promotion Rules of other employees (Field Staff)”. Even in these rules distinction as is sought to be made is not carved out and all posts of Forest Guards are required to be filled up by promotion from the category of Timber Watcher. The Apex Court in Ramchandra Shankar Deodhar and others Vs. The State of Maharashtra and others, AIR 1974 S.C. 259, has held under:- “ Now, it is clear that this procedure suffers from a serious infirmity in that it provides for promotions to the State cadre of Deputy Collectors to be made on the basis of divisional select lists. That clearly amounts to denial of equality of opportunity to Mamlatdars in the State in the matter of promotion to the cadre of Deputy Collectors. If a Mamlatdar aspires to be promoted to the cadre of Deputy Collectors which is the next higher cadre of promotion for him, he has to be promoted first as officiating Deputy Collector. It is only after he is promoted as officiating Deputy Collector that he can become eligible to be confirmed in the cadre of Deputy Collectors. But, in order to be promoted as officiating Deputy Collector, he has to wait until a vacancy occurs in the post of Deputy Collector in his division. Even if he is senior to a Mamlatdar in another division and more suitable, he cannot be promoted to officiate in a vacancy which arises in the other division. His opportunity for promotion is limited to a vacancy in his own division. The consequence is that if a vacancy in the post of Deputy Collector arises earlier in one division, a Mamlatdar in the select list of that division would get promoted as officiating Deputy Collector earlier than a 5 Mamlatdar in another division where a vacancy in the post of Deputy Collector arises later and, subject to the operation of officiation, that would mean that the former would gain entry in the cadre of Deputy Collectors earlier than the latter, even though the former may be junior and less suitable than the latter. The entry in the cadre of Deputy Collectors is thus made to depend not on the assessment of the relative mertis of a Mamlatdar vis-a-vis the other Mamlatdars in the State, but on the fortuitous circumstances as to when a vacancy in the post of Deputy Collector arises in the division to which the Mamlatdar belongs. This is clearly violative of the equal opportunity clause because it is wholly unrelated to the object and purpose of promotion which is to secure an efficient cadre of Deputy Collectors and in fact negates it. It must be remembered that the cadre of Deputy Collectors is a State cadre and for promotion to such State cadre every Mamlatdar must have equal opportunity to be considered. Where promotion is made by selection on the basis of merit-cum- seniority, every Mamlatdar should be able to enter the lists; he should have equal opportunity with others for being considered for promotion. There must be one common door for entry into the cadre of Deputy Collectors through which every Mamlatdar should be equally entitled to enter, provided he is selected on the application of the principle of the application of the principle of merit-cum-seniority. There cannot be six doors of entry, one door available exclusively for the Mamlatdars of each division. That is bound to create inequality of opportunity in the matter of promotion. It is true that confirmations in the cadre of Deputy Collectors are made on the basis of combined seniority list of officiating Deputy Collectors, but that does not cure the infirmity in the mode of promotion. 6 The allotment of deemed dates of continuous officiation cannot help retrieve those who have had no opportunity to be promoted as officiating Deputy Collectors, not on account of want of higher seniority or better merit, but purely on account of lack of adequate number of vacancy in the post of Deputy Collector since the Officiating Deputy Collectors are still substantively Mamlatdars and it is in virtue of their being Mamlatdars that they are eligible to be promoted to the cadre of Deputy Collectors by confirmation, the combined seniority list of officiating Deputy Collectors is in the truth and reality nothing but a combined select list of Mamlatdars prepared by amalgamating the divisional select lists. The amalgamation of the divisional select lists is not made on a comparative assessment of the relative merits of the Mamlatdars in the divisional select lists so as to produce a combined seniority lists so as to produce a combined seniority list based on merit-cum-seniority, but it proceeds on the basis of deemed dates of continuous officiation as Deputy Collectors given to Mamlatdars in their respective divisional select lists. The giving of deemed dates of continuous officiation no doubt reflects the relative merits of the Mamlatdars in each division taken as a separate unit, but it does not seek to adjust the seniority of the approved Mamlatdars in all the division taken as a whole on the basis of assessment of their relative merits. It does not, therefore, eliminate the inequality of treatment, eliminate the inequality of treatment which inheres at the initial state of promotion as officiating Deputy Collectors. The vice of inequality of opportunity continues to inhibit promotions to the cadre of Deputy Collectors. The procedure followed by the State Government in making promotions must, therefore, be held to be violative of Art. 16 of the Constitution.” 7 6. Consequently, the respondents are directed to consider the petitioners’ case/claims and accord all the benefits of Seniority from the date when persons Junior to them were accorded benefit of promotion as Forest Guards. Petitioners shall be also entitled to all consequential benefits. Action be taken positively within three months from the date of the receipt of certified copy of the order, failing which, thereafter petitioners shall be entitled to interest on payment due and payable, if any, at the rate of 9 % per annum. 7. With the aforesaid observations, the present petition stands disposed of accordingly. (Sanjay Karol), Judge December 16, 2010 CS