1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Anwar Ali Vs. 1. State of Rajasthan 2. The S.E., P.H.E.D., Nagaur. 3. Executive Engineer, Merta City 4. Sh. Poorna Ram 5. Sh. Mangala Ram D.B. CIVIL SPECIAL APPEAL (W) NO.1038/1997 against the order dated 27.5.1997 passed in S.B. Civil Writ Petition No.1309/88. Date : 27.09.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE SANGEET LODHA Mr. Ranjeet Joshi for the appellant. Mr. L.R. Upadhyay, Dy. Government Advocate. ______ BY THE COURT : (PER HON'BLE RAJESH BALIA, J.) Heard learned counsel for the parties. This appeal is by the petitioner serving in P.H.E.D. Department and had been engaged as daily rated workman on work charged establishment in 1970. 2 However, he was given appointment under the Work Charge Rules on 1.5.1971 and his designation was stated to be Chowkidar. As per the service book Ex.R/1 submitted by the respondent, the designation of petitioner was changed from Chowkidar to Helper II vide order dated 3.2.1972 by noticing the fact that he was discharging the function of Helper II from 1.2.1971. By order dated 15.11.1978, the petitioner was promoted to the post of Fitter also. The final seniority list Annex.3 dated 19.11.1985 was published by the respondents, of the work charge Fitter II/ Pump Drivers II, Pump Drivers III/ Technician II/ Helper II in Pump Branch, Line Branch Wall man / Cowkidar working in Rural Water Project under Divisional Office of Merta City. In this list, the petitioner's name was shown at item No.3 as Chowkidar by showing his date of appointment as 1.5.1971. Mangla Ram was shown to be at item No.12. He also having been appointed as Helper II on 1.5.1971. When the petitioner was so appointed, the petitioner had no 3 grievance about that. Thus, vis-a-vis Mangla Ram and Poorna Ram petitioner were shown senior. [ In this seniority list Poorna Ram S/o Udaram Helper II was also shown junior to petitioner at serial No.11. ] Thereafter a provisional seniority list was published vide order Annex.5 dated 17.12.1985 by Supreihntending Engineer, PHED, Nagaur Circle. This provisional seniority list in terms of Rules 2 and 28 of the Rajasthan Engineering Subordinate Service (Public Health) for Pump Driver II / Fitter II, Electrician II, Driver III, and Helpers, Beldars / Chowkidars working on workshop establishment of PHED at Nagaur, Deedwana and Merta Division of Nagaur District. In this provisional seniority list, the name of Mangala Ram was shown at item No.11 with the same particulars. However, name of Anwar Ali, the petitioner was shown at item No.16 disclosing that on 11.12.1971 he was made Helper by 4 promotion. Likewise in this list Poorna Ram was shown to be at Serial No.10 just above Mangla Ram. By this provisional list final inter se seniority of petitioner vis-a- vis of Mangla Ram and Poorna Ram was disturbed. In response, to inviting objections, the petitioner had submitted his objection pointing out that he was already senior to Mangla Ram and Purna Ram according to the final seniority list published as above. The petitioner submitted representation Annex.7 on 3.2.1986. He again submitted his reminder on 25.6.1981. Meanwhile Purna Ram and Mangla Ram, who was shown junior to the petitioner were promoted as Fitter I from the post of Fitter II. The petitioner after making a demand of justice by pointing out out that he is made to work under a person junior to him by this writ petition and getting no response. The respondents in their return did not show why the seniority position of the petitioner vis-a-vis Purana Ram was altered but merely stated that Annex.3 5 was only a proposal by Executive Engineer and he was not competent to determine the seniority and placed reliance on the service book showing that he cannot get seniority from 1970 from the date of his initial appointment as casual labour. The learned Single Judge has dismissed the writ petition by noticing that the seniority list was prepared by Executive Engineer on 19.11.1985. Thereafter, final seniority list was prepared by the Superintending Engineer on 17.12.1985 and without assigning any reason the learned Single Judge held as Under:- “According to Annex.5, Poorna Ram was appointed on 24.4.1971 while Mangala Ram was appointed on 1.5.1971 (wrongly typed as 1972). Looking to this factual position, I do not feel that any cause is made out for interference in the list prepared. It is not proved that respondents were junior to the petitioner.” Hence, this appeal. 6 Having heard learned counsel for the parties we are of the opinion that the judgment of learned Single Judge is founded on factual mistake. Annex.3 dated 19.11.1985 was annexed with the list of candidates, whose names have been included in the seniority list. Annex.3 speaks in unequivocal terms that the final seniority list is being published ant it is under the signature of Executive Engineer was for workcharged employee under Merta Division only. ____ employees of workcharge establishment at Merta the inter se seniority of petitioner Anwar Ali, Mangla Ram and Poorna Ram was not subjected to challenge. However, it nowhere says that this inter se seniority was subject to approval or further determination by the Superintending Engineer and that the petitioner's name was shown at serial No.3 and his date of appointment is 1.5.1971, the name of Puran Ram is shown at serial No.11 and his date of appointment is 24.4.1971 and name of Mangala Ram 7 has been shown at serial No.12 and his date of appointment is 1.5.1971 that is to say that on the same date on which the petitioner was appointed. The ______ noticed by learned Single Judge between Poorna Ram and Magla Ram vis-a-vis each other ignores that subject matter of challenge was not inter se seniority of Poorna Ram and Mangla Ram but it has ___ Anwar Ali. More significantly the seniority list Annex.3 is of officers as on 30th April, 1984 whether Annex.5 purports to determine the consolidate provisional seniority list of the officers mentioned in the order as on 30th April, 1985 of the ____ Nagaur District at Merta Deedwana and Nagaur Division of PHED, therefore, two dates are entirely different and cannot be related to the same purpose. Moreover Annex.5 clearly states that it is for inviting objections against the provisional seniority list. Therefore, the list annexed with Annex.5 in any sense cannot be considered to be a final seniority as assumed by the learned Single Judge by acting on ipsa dixit of the 8 respondents. It may be noticed that the respondents have placed Ex.R/1, the service book of the petitioner on which reliance has been placed. The service book of the petitioner discloses that the petitioner was appointed initially with designation of Chowkidar in the pay scale of Rs.60-90 on 1.5.1971 and by subsequent order dated 3.2.1972 noticing that he is actually discharging function of Helper II, his designation had been changed. It is not a case of appointing him as Helper by promotion as has been mentioned in the provisional seniority list published along with Annex.5. It is a case of change of mere designation, the date of appointment on the post for which seniority is determined remained the same and cannot be altered. The rule is very clear on which reliance has been placed in the order itself that where the two persons are appointed on the same date the person older is to be made senior. The petitioner is also senior in the seniority of Helper II as on 30.4.1984 whereby 9 treating him to be promoted as Helper II in the same year in which the respondent Mangla Ram was appointed. He has been shown as having been promoted as Helper Grade II in December 1971. Even in that case where there is a claim between the appointed by direct recruitment and person promoted to the same post in the same year the promottee of a year ranks senior to the direct recruitee of the same year notwithstanding actual date of recruitment/ promotion Considering either case the petitioner ought to have been ranked senior to the respondent Mangla Ram. So far as Purna Ram is concerned, undoubtedly he being appointed earlier than petitioner on the post of Assistant / Helper II in April 1971 has rightly been senior in the rank. The learned Single Judge has failed to notice these facts emerging from the record which has led to error in the judgment. The petitioner was entitled to relief claimed by him. 10 As a result of the aforesaid discussion, the appeal is allowed. The judgment under appeal is set aside. The respondents are directed to place the petitioner in seniority above Mangal Ram as Helper. We find that there is no dispute about the fact that Mangla Ram was also appointed as Helper-II and the petitioner was also appointed in the pay scale of Rs.60-90 initially as Chowkidar but later on as Helper II belongs to the same cadre of personal. As a result of the aforesaid assignment of seniority,the petitioner was entitled to be considered for promotion to the post of Fitter I prior to the respondents Mangla Ram. In view thereof, the respondents are directed to consider the case of the petitioner for promotion to the post of Fitter-I with effect from the date Mangla Ram, the person junior to him was so considered and promoted. If the petitioner is otherwise found suitable, he may be promoted s Fitter I with effect from the date person junior to him was promoted with all consequential benefits. We are told that the petitioner has been retired from service, this would entail the benefits applicable to 11 the higher grade, it would not effect the petitioner's entitlement to retiral benefits as a result of re-fixation of his emoluments and for retiral benefits, the petitioner is entitled to whole arrears with effect from the date he has superannuated. This order may be given effect to within 3 months, failing which the arrears to which the petitioner becomes entitled which carry interest at the rate of 10% per annum with effect from the date of this order. No order as to costs. [ SANGEET LODHA ], J. [ RAJESH BALIA ], J. babulal/