IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5195 of 2010 alongwith CWPs No. 779 and 782 of 2011 Date of decision: 13.05.2011 1. CWP No. 5195 of 2010: Yugal Kishore …. Petitioner Versus State of H.P. and others …. Respondents 2. CWP No. 779 of 2011: Golu Ram …. Petitioner Versus State of H.P. and others …. Respondents 3. CWP No. 782 of 2011: Biri Singh …. Petitioner Versus State of H.P. and others …. Respondents Coram : The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice V.K. Ahuja, Judge. For the petitioner(s): Mr. A.K. Gupta and Mr. Abhyendra Gupta, Advocates. (In all the petitions) For the respondents: Mr. R.K. Bawa, Advocate General with Mr. J.K. Verma, Deputy Advocate General. (In all the petitions) Justice Kurian Joseph, C.J.(Oral): The petitioners in all these cases are aggrieved especially on account of the change in the seniority list. The change in the seniority list occasioned on account of the beneficial measures taken by the Government by issuing a direction to count the daily waged service also for the purpose of seniority. In the process, a few of the workmen, who had enjoyed the benefit otherwise, had to forego the 2 same on account of the revision of seniority list by taking into account the daily waged service also. It is seen that on the basis of the pre- revised seniority list, some of the petitioners had been granted higher scale based on the then prevailing seniority list. That higher scale granted to them is now sought to be revised on the basis of the revised seniority list. Apart from the re-fixation as above, there is also a direction for recovery of the excess amount already paid to them. 2. In reply to the writ petitions, it is mainly contended that the revision of seniority list was necessitated on account of the direction by the Government to count the daily waged service towards seniority. The seniority list was circulated and thereafter on finalization of the seniority list, steps were taken to refix the scale. We may extract the relevant paragraphs of the reply from one of the writ petitions in CWP No. 5195 of 2010, wherein it has been stated at paragraphs 3 and 4 of the reply as follows:- “3. That the petition is not maintainable on account of law of estoppels. It is submitted that provisional seniority list as on 31.5.2009 on the basis of the date of joining as daily wagers was circulated vide letter No. 13291-97 dated 23.11.2009 for inviting objections, but no objections were received and seniority list has been finalized vide letter No. 34/2- /7 dated 25.5.2010 copies alongwith extract showing the name of the petitioner are annexed as Annexure R-1 and R-II respectively. Therefore, the petitioner is now stopped to file the present petition. 4. That previously the seniority was determined after regularization 1.1.1994 onwards on the basis of age and the persons elder in age were placed senior to the persons younger in age irrespective of their joining on daily wage basis. Subsequently as per Govt. instructions seniority was revised in 3 accordance with the date of joining the post on daily wage basis and up-gradation made earlier has become null and void. Therefore, review D.P.C. has been held on 13.10.2009 vide Annexure R-III and the petitioner has been down graded as Technician Grade-II w.e.f. 1.1.2002 instead of Technician Gr.-I vide Annexure R-IV after serving him proper show cause notice and considering the same in accordance with instructions of the Govt. vide Annexure R-V. Therefore, the present petition is not maintainable.” 3. There is no rejoinder. Be that as it may. Though the respondents are justified under law in re-fixing the seniority list and though acted fairly in the process of revision of seniority list, we are afraid that the steps taken for recovery of the benefits already enjoyed by the workmen cannot be justified. The petitioners happened to be placed in the Technician Grade-II, on account of the then existing seniority list which was revised subsequently and on account of the revision only, the re-fixation is done. Though the re-fixation is justified, in the absence of a challenge to the final seniority list now issued, we do not find any justification in recovering the benefits already paid to them in the revised scale. Therefore, these writ petitions are disposed of with the following directions:- (i) There shall be no recovery of the benefits already paid to the petitioners and similarly situated employees on account of the revision of the seniority list and consequent re- fixation of the pay. (ii) The respondents are permitted to refix the pay on the basis of the final seniority list, but it shall have no effect of recovery or benefits already paid in the pre-revised scale. 4 (iii) In case, any amounts have been recovered from the petitioners, the same shall be reimbursed to them within a period of three months. 4. With the above directions, the writ petitions stand disposed of, so also the pending miscellaneous application(s), if any. (Justice Kurian Joseph), Chief Justice ( V.K. Ahuja ), May 13, 2011 z Judge (BSS/MLG) 5