IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 1993 of 2008 (OA No.1467 of 1991) Judgment reserved on : 8. 3. 2010 Date of decision : 29. 3. 2010. Ranjeet Mehta …Petitioner. Versus H.P.M.C. and others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Dilip Sharma , Advocate. For the Respondents : Mr. K.D.Shreedhar, Advocate, for respondent No.1. Mrs. Shubh Mahajan, Advocate, for respondents No.2 & 3. None for respondent No. 5. Kuldip Singh, Judge The petitioner has prayed that he may be declared as senior most Procurement Assistant and tentative seniority list dated 21.6.1989 as stood on 1.1.1989 may be quashed and respondent- Corporation may be directed to prepare final seniority list in accordance with the directions of this Court. In alternative, the petitioner may be ordered to be placed at serial No.2 in the seniority list Annexure A-7. The ad hoc promotions of respondents No.2 to 5 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 vide office order dated 17.6.1987 Annexure A-9 may be quashed , the respondent-Corporation may be directed to give benefit of adhoc promotion to petitioner w.e.f.17.6.1987 from which date his juniors were given benefit of said promotion as Marketing Assistants with consequential benefits of ad hoc promotion alongwith interest at the rate of 18% per annum. 2. The further case of the petitioner is that petitioner and some other persons were offered appointment as Loading / Unloading Assistants at a fixed salary of Rs.300/- per month initially for a period upto 31.10.1977 vide office order dated 5.7. 1977. The petitioner was posted at Delhi and he joined on 13.7.1977. On 20.7.1978, the petitioner was posted as Procurement Assistant with headquarters at Bangalore on a fixed salary of Rs. 450/- per month for a period of four months, the petitioner joined at Bangalore. 3. The Corporation appointed some more Loading / Unloading Assistants vide office order dated 25.7.1979 for a period upto 31.10.1979 on fixed salary of Rs. 300/- per month. The Loading /Unloading Assistants were appointed for a period of three months continued to work on consolidated salary continuously thereafter without any break. 4. The Corporation vide order dated 29.1.1981 regularised the services of 10 Loading & Unloading Assistants w.e.f. 23.5.1981 in the pay scale of Rs. 400 – 600 but the name of the petitioner was not included in the said list. The petitioner was not aware that some persons have been regularized vide order dated 29.1.1981. 5. The order dated 29.1.1981 indicates that the basis of regularization of Loading / Unloading Assistants was their initial 3 appointment on consolidated salary and they were recruited through Employment Exchanges. The respondent-Corporation had wrongly ignored the case of the petitioner for regularization as Procurement Assistant alongwith his other contemporaries and before the regularization of his juniors. 6. The petitioner vide office order dated 22.3.1982 was regularized as Procurement Assistant in the pay scale of Rs. 400 – 600 with immediate effect. The petitioner was getting higher consolidated monthly salary than his other colleagues who were recruited in the years 1977 and 1979. The further case of the petitioner is that Corporation should have regularized the petitioner as Procurement Assistant with effect from the date his juniors were regularized vide order dated 29.1.1981. 7. The petitioner vide representation dated 20.4.1982 represented to the Corporation that he was entitled to be regularized in higher pay scale than the existing post of Procurement Assistant in the scale of Rs. 400 – 600. 8. The Corporation after regularization of petitioner and other persons did not circulate the seniority list except tentative seniority list of Procurement Assistant on 21.6.1989 as it existed on 1.1.1989. The petitioner on the basis of seniority list dated 21.6.1989 came to know that his juniors were regularized as Procurement Assistants w.e.f. 23.5.1981 whereas the petitioner was appointed as Procurement Assistant w.e.f. 22.3.1982. The petitioner made representation dated 6.3.1990 to the Corporation and requested that he may be placed at serial No.2 in the seniority list as Procurement Assistant with all consequential benefits. The 4 petitioner at that time came to know that respondents No.2 to 5, who were junior to petitioner were promoted on ad hoc basis as Marketing Assistants in the pay scale of Rs. 700 – 1200 vide two separate orders dated 17.6.1987 and 13.10.1988. The petitioner made representation to the Corporation. 9. The Recruitment and Promotion Rules for the post of Marketing Assistant provide that 40% of the posts shall be filled in by promotion and 60% by direct recruitment. The feeder category for the post of Marketing Assistant is Procurement, Transhipment, Loading and Un-loading Assistants, Salesmen , Recovery Assistants with two years service for graduates and five years service for others. On the basis of office order dated 17.6. 1987 and 13.10.1988 four persons have been promoted on ad hoc basis as Marketing Assistants and against these posts the respondent- Corporation have to make regular promotions. The petitioner is entitled for consideration against these posts after assigning him proper seniority as Procurement Assistant. 10. The petitioner had joined the respondent-Corporation as Loading / Unloading Assistant in the year 1977, therefore, he was entitled to regularization in the Corporation prior to the persons who had joined the Corporation in the year 1979. The respondent No.2 was recruited on the same day alongwith petitioner as Loading/Unloading Assistant in the year 1977, but petitioner being elder in age would rank senior to respondent No.2. Therefore, in the tentative seniority list Annexure A-7 dated 21.6.1989 the petitioner is entitled to be placed above the respondent No.2, who has been shown at serial No.2 in the said seniority list. The 5 respondents No.3 and 4 were recruited as Loading /Unloading Assistants in the year 1979 and they were junior to the petitioner and necessarily they have to rank junior to the petitioner as Procurement Assistant. 11. The respondent No.1 has contested the petition and has taken preliminary objection that tentative seniority list dated 21.6.1989 has not been finalized, therefore, writ petition is not maintainable. On merits, it has been submitted that tentative seniority list was circulated on 21.6.1989 and the petition has been filed in September, 1991. Therefore, the petition is barred under Section 21 of the Administrative Tribunals Act. On merits, it has been submitted that wages paid to Procurement Assistants were commensurate with the daily wage rates fixed by the local authority for clerical grade which were different at different places. Therefore, keeping in view the place of posting, the incumbents were paid wages. The petitioner remained in the category of daily paid / consolidated Procurement Assistant / Loading /Unloading Assistants. 12. The further case of the Corporation is that 10 Loading / Unloading Assistants/Procurement Assistants were regularized in the pay scale of Rs. 400 – 600 w.e.f. 23.5.1981. It has been denied that petitioner was not aware of the said regularization. After regularization of petitioner, the seniority list of Procurement Assistants/ Salesmen was circulated in July 1983 wherein the dates of joining of all Procurement Assistants were given and no representation was received from petitioner. The regularization of Loading /Unloading Assistants was considered not only on the basis 6 of their seniority but also on the basis of their performance while discharging duties as Loading / Unloading Assistants and Procurement Assistants. The case of petitioner was also considered for regularization alongwith others but his performance while discharging duties as Procurement Assistant/Saleman Assistant was not reported to be satisfactory and adverse was reported against him. The regularization of petitioner on 22.3.1982 instead of May 1981 has been justified by the respondent. There is no justification for regularization of petitioner from May, 1981. There is no order of regularization dated 29.1.1981. 13. The seniority list of Procurement Assistants, Transhipment Assistants and Salesmen was circulated alongwith letter dated 23.7.1983 in which petitioner was shown at serial No.10. The petitioner did not file any objections against the said seniority list. The seniority list was updated and re-circulated vide letter dated 21.6.1989 but even to this seniority list, no objection was received from the petitioner and the seniority list was treated as final vide letter dated 21.6.1989. The petitioner filed representation eight months after the finalization of the seniority list. It has been denied that respondents are juniors to petitioner. The services of respondents No.2 to 5 were regularized prior to regularization of the petitioner, they were senior to petitioner and have been promoted on ad hoc basis purely on the basis of seniority. The petitioner has not filed any appeal against any order or his seniority. The respondent No.1 has prayed for dismissal of the petition. 14. The respondents No.2 and 3 have also filed separate joint reply similarly respondents No.4 and 5 have also filed separate 7 joint reply and prayed for dismissal of the petition. The petitioner has filed rejoinder to the reply of respondent No.1 and has reiterated his stand taken by him in the petition. 15. I have heard the learned counsel for the parties. The petitioner vide office order dated 5.7.1977 was appointed as Loading /Unloading Assistant for a period upto 31.10.1977 and his name was sponsored by the Employment Exchange. The petitioner vide office order dated 20.7.1978 was appointed Procurement Assistant on a fixed salary of Rs. 450/- for four months. The office orders dated 5.7.1977 and 20.7.1978 indicate that petitioner was appointed Loading /Unloading Assistant and Procurement Assistant on fixed salary and for fixed period. The respondents No.2 to 5 vide office order dated 29.1.1981 were appointed on regular basis on the posts of Procurement Assistant, Transhipment Assistant in the pay scale of Rs. 400 – 600/- w.e.f. 23.5.1981. The name of the petitioner does not find mention in the order dated 29.1.1981 for appointment on the posts of Procurement Assistant and Transhipment Assistant. The petitioner vide order dated 22.3.1982 was appointed on regular basis on the post of Procurement Assistant / Transhipment Assistant in the pay scale of Rs. 400 – 600 with immediate effect. The petitioner vide representation dated 20.4.1982 had raised some grievance regarding the pay scale given to him when he was appointed on regular post of Procurement Assistant / Transhipment Assistant. In the representation dated 20.4.1982, the petitioner has not raised any grievance regarding the regular appointment of respondents No. 2 to 5 on the posts of Procurement Assistant / Transhipment Assistant vide order dated 8 29.1.1981 with effect from 23.5.1981. In other words, the petitioner has accepted the regular appointments of respondents No.2 to 5 on the posts of Procurement Assistant and Transhipment Assistant w.e.f. 23.5.1981. It is not believable that the petitioner was not aware of regular appointments of respondents No.2 to 5 vide order dated 29.1.1981 w.e.f. 23.5.1981. 16. The respondent No.1 has taken a specific stand that after the regularization of the petitioner, the seniority list of Procurement Assistant/ Transhipment Assiatant and Salesmen was circulated vide letter dated 23.7.1983 in which the name of the petitioner was at serial No.10. The objections were invited by 5.8.1983 but petitioner did not file any objections within the stipulated time or thereafter. The seniority list was updated and re- circulated vide letter dated 21.6.1989 and objections were invited latest by 15.7.1989, but petitioner did not file any objections to this seniority list within the stipulated time and the seniority list was treated as final vide letter dated 21.6.1989. The petitioner as per his own showing has represented against this seniority list on 6.3.1990 after eight months of the stipulated time given for filing the objections. The petitioner filed the petition in September, 1991 before the erstwhile Tribunal. The respondents No.2 to 5 right from 23.5.1981 are senior to the petitioner and after about 30 years the settled position regarding the seniority of the respondents No.2 to 5 cannot be unsettled. The petitioner accepted the seniority of respondents No.2 to 5 above him which is clear from the fact that in the representation dated 20.4.1982 Annexure A-6, the petitioner has not raised any grievance against the regular appointments of 9 respondents No.2 to 5 and others w.e.f. 23.5.1981. The petitioner has not even filed objections within the stipulated time against tentative seniority list dated 21.6.1989 in which it was made clear that in case no objection / representation against the seniority as determined is received within the stipulate date, the seniority list shall be considered final. The grievance of the petitioner is that he was getting higher salary in comparison to respondents No. 2 to 5 when he was appointed as Loading /Unloading Assistant and Procurement Assistant in the years 1977 and 1978. The petitioner has placed nothing on record to show that he was entitled to benefit of tenure appointment of Loading/Unloading Assistant and Procurement Assistant in the years 1977 and 1978 on fixed salary. On the contrary as per respondent the regularization of loading/unloading Assistants was considered not only on the basis of their seniority but also on the basis of their performance while discharging duties of loading/unloading Assistants and Procurement Assistant. The case of the petitioner was also considered for regularization alongwith others but his performance while discharging duties as Procurement Assistant/Saleman Assistant was not reported to be satisfactory and adverse was reported against them. 17. The petitioner has raised grievance against adhoc promotions of respondents No.2 to 5 as Marketing Assistants but the grievance of the petitioner against such promotions of respondents No.2 to 5 has also no merit. The respondents No.2 to 5 have been promoted as Marketing Assistants on ad hoc basis on the basis of their seniority, the petitioner has failed to establish that 10 he is senior to respondents No.2 to 5. There is no merit in the petition. 18. No other point was urged. 19. As a result of the above discussion, the petition fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), March 29 , 2010, Judge. (GR)