IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 8855 of 2008 Decided on : 08.12.2010. Abhay Raj Singh ..…Petitioner. Versus State of H.P and Another. .… Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Petitioner :Mr. Bhuvnesh Sharma, Advocate. For the Respondents :Mr. Anil Jaswal, Dy. Advocate General . V.K. Sharma, Judge (Oral) The petition has been filed on the following prayers vide para 7 (i) and (ii) :- “ (i) That the seniority list at Annexure A-2 dated 10.4.2002 to the extent the applicant has been assigned seniority at Sr. No.138 instead of 101 may very kindly be quashed and set aside. (ii) That the respondents may further be directed to assign seniority to the applicant by counting his daily waged services w.e.f. 21.12.1978 as work Inspector.” 2. In reply on behalf of respondents the following stand has been taken by way of preliminary submission :- “It is respectfully submitted that present OA is not maintainable as the application is relying upon the circle level seniority list circulated by the 1 Whether reporters of the local papers may be allowed to see the judgment? No, 2 Superintending Engineer, I & PH, circle Nurpur vide letter dated 27.9.90 (Annexure A-1) when he was working on daily wages basis and challenging the seniority list of state level work Inspector working on regular basis and circulated by the Engineer-in-chief, vide letter dated 10.4.02 (Annexure A-2). In fact the name of the applicant is appearing at Serial No.2 of seniority list circulated by the Superintending Engineer, I & PH circle number but this seniority list is seniority of work Inspector working on daily wages basis in Nurpur circle. The services of the applicant has been regularized w.e.f. 1.1.1994 pursuant to the paragraph (1) of the Law laid down by the Hon’ble Apex Court in Mool Raj Upadhayay’s case where in it has been laid down that Daily wages/mustor roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous services with a minimum of 240 days in a calendar year on December 31, 1993 shall be appointed as work charged employee with effect from January 1, 1994. After the regularization of the applicant w.e.f. 1.1.1994 his seniority has been maintained at state level as the category of work Inspector is feeding category for the promotion of the post of Junior Engineer, since the other similar situated work Inspector working in different circle were also regularized w.e.f. 1.1.94 through out the state as such their seniority was maintained as per rules. As rules, when other factors are equal, seniority is determined on basis of age and on a perusal of seniority list under challenge would reveal that same rule has been followed while drawing the state level seniority list. No discrimination has been done with the applicant as such the present OA may kindly be dismissed having no merits.” 3 3. A rejoinder refuting the above stand and reiterating the averments set up in the plaint has also been filed. 4. In view of the above, in case the petitioner still has any surviving grievance with regard to the factual and legal position, he may certainly point out the same by way of appropriate representation before respondent No.2/competent authority within a period of one month from today along with copy of this judgment and the said respondent/competent authority shall decide the same within another three months after affording an opportunity of being heard to the petitioner, as also taking into consideration the instructions circulated vide letter dated 16.6.2000 addressed by the Engineer in Chief H.P P.W.D Shimla, to all the Superintending Engineers etc. etc. a copy of which has been brought on record by the learned counsel for the petitioner, regarding regularization of Daily waged contigent paid workers, according to which the service rendered by an incumbent on Daily Wages is liable to be taken into account for assigning seniority on regularization, after affording an opportunity of being heard to the petitioner and the persons likely to be effected by such an exercise. Needless to say that consequential benefits, if any, shall follow the decision on the representation. 5. In view of the above, the petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge. 8th December, 2010 CS