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2007 DIGILAW 292 (HP)

BHAGAT RAM v. H. R FOREST CORPORATION

2007-07-12

B.S.CHAUHAN, NARINDER SINGH THAKUR

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JUDGMENT Narinder Thakur, Vice-Chairman.—In this original application applicant has prayed for the following reliefs:— "(a) That Annexures A-4yand A-7 may be quashed and set aside; (b)That the respondents No. 1 and 2 may be directed to consider the applicant for appointment as regular Timber Watcher w.e.f. 20.8.1987 from the date his juniors have been regularized/appointed as regular Timber Watchers with all consequential benefits; (c) That the respondents No. 1 and 2 may be directed to assign the right place to the applicant in the seniority list of regular Timber Watchers, after regularizing/appointing him as regular Timber Watcher retrospectively w.e.f. 20.8.1987; (d) That the respondents No. 1 and 2 may be directed to produce the records of the DPC which has resulted into the regular appointment of the respondents No. 3 and 4 as Timber Watchers; (e) That costs of the application may also be allowed in favour of the applicant and against the respondents; and (f) Any other or further order which this Honble Tribunal deems just and proper in view of the facts and circumstances of the case may also kindly be passed in favour of the applicant and against the respondents in the interest of law and justice." 2. The facts as brought out by the applicant in this Original Application are that he was initially engaged as a daily wage Timber Watcher by the respondent Corporation on 20.9.1985. He was employed through employment exchange. The respondents’ No. 3 and 4 have joined on 4.10.1985 and 1.12.1985 respectively as a Timber Watcher. 3. It is further averred that the respondent corporation circulated the final seniority list of daily wage Timber Watcher showing position as on 1.1.1987 in respect of the Directorate of (Marketing), H.R Forest Corporation on 28.3.1987 (Annexure-A-1). The said seniority list indicate that the respondent No. 3 joined as daily wager on 2.7.1985, but no mention has been made with respect to post. 4. Certain daily wager Timber Watchers filed Original Application before this Tribunal for issuance of directions to the respondent corporation to re-issue seniority list only by taking into consideration the service rendered as daily waged Timber Watcher only. The prayer was granted by this Tribunal and the directions were issued to the respondent corporation to re-praying the seniority list by taking into consideration their appointment as daily waged Timber Watcher only. 5. The prayer was granted by this Tribunal and the directions were issued to the respondent corporation to re-praying the seniority list by taking into consideration their appointment as daily waged Timber Watcher only. 5. Thereafter tentative seniority list of daily wage Timber Watcher as stood on 1.4.1990 was circulated by the respondent corporation on 31.7.1990 (Annexure-2). In the said seniority list the applicant has been assigned seniority at Sr. No. 3 and respondents No 3 at Sr. 14 and the name of respondent No. 4 does not find mention anywhere in the said seniority list. 6. The respondent corporation regularized the services of daily wage Timber Watcher w.e.f. 2.8.1987 and the case of the applicant was not considered due to wrong seniority position, which was rectified later on. Rather the applicant was regularized w.e.f. 13.12.1989 (Annexure-A-3). 7. Respondents corporation further circulated the seniority list on 1.4.1991 (Annexure-A-4) in which again the position of the applicant was shown at Sr. No. 29 and the respondents No, 3 and 4 were shown at Sr. No. 5 and 8 respectively. Again in another seniority list dated 19.10.1992 (Annexure 7) the respondents No. 3 and 4 have been shown above the applicant. 8. In the reply filed by Respondent Corporation it has been averred that the applicant joined as a Timber Watcher on daily wage basis in the Corporation on 20.9.1985. Respondents No. 3 and 4 were appointed initially as daily waged Timber Watcher w.e.f. 26.2.1984 and 1.6.1984 respectively. However, further in para (c) the facts have been contorted by averring that the respondent corporation issuing seniority list of daily wage Timber Watcher vide memo dated 28.3.1987 and it is not correct that respondent No. 3 joined the corporation as a daily wage employee on 2.7.1985, whereas he was engaged as a daily wage worker on 26.2.1984. In the said seniority list the category of some daily wager could not find mention as the information was being collected from the Divisional Manager under whom they were serving which could not be received well in time. It is a fact that the applicant was engaged as a daily wager after respondents No. 3 and 4. 9. The filing of Original Application earlier and issuance of directions by this Tribunal have been admitted by the respondent Corporation. It is a fact that the applicant was engaged as a daily wager after respondents No. 3 and 4. 9. The filing of Original Application earlier and issuance of directions by this Tribunal have been admitted by the respondent Corporation. It is also admitted that the seniority list circulated vide memo dated 31.7.1990 (Annexure-2) has been reframed in compliance to the directions of the Honble High Court in CWP No. 662/1983 titled as Biptu Ram v. H.P. State Forest Corporation Ltd., and in that seniority list the applicant appeared at Sr. No. 3, whereas the respondent Nos. 3 and 4 had not been shown in the seniority list of daily wage Timber Watcher because they had been regularised as a Timber Watcher during 8/1987. 10. The arguments of the learned Counsel for the respective parties were heard at length and the record summoned has been perused besides the perusal of the pleadings of the parties. 11. As per office report dated May 6, 2004 respondents No. 3 and 4 had been duly served neither they were present on that date nor represented by any Counsel, hence they were proceeded against ex- parte. Annexure-A-1 is the final seniority list of daily wage Timber Watcher circulated on 28.3.1987 showing the position as on 1.1.1987. The respondent No. 3 was at Sr. No. 4 and the applicant was at Sr. No. 31. Annexure- A-2 is tentative seniority list of daily wage Timber Watcher showing position as on 1.4.1990 and in this the applicant has been shown at Sr. No. 3 with his date of appointment shown as 20.9.1985 and respondents No. 3 has been shown at Sr. No. 15 with his date of appointment shown as 1.8.1986. The respondent No. 4 has not been shown in the said seniority list. 12. The latest seniority list was issued on 19.10.1992 (Annexure-7)/ wherein the respondent No. 3 has been shown at Sr. No. 14 with his date of appointment as daily wage Timber Watcher shown clearly as 4.10.1985 and respondent No. 4 has been shown at Sr. No. 16 with his date of appointment as daily wage Timber Watcher shown clearly as 1.12.1985. On the other hand the applicant has been shown at Sr. No. 26 with his date of appointment as daily waged Timber Watcher as on 20.9.1985. The record clearly belies the averments made by the respondent corporation in their reply. 13. No. 16 with his date of appointment as daily wage Timber Watcher shown clearly as 1.12.1985. On the other hand the applicant has been shown at Sr. No. 26 with his date of appointment as daily waged Timber Watcher as on 20.9.1985. The record clearly belies the averments made by the respondent corporation in their reply. 13. On perusal of record no manner of doubt is left in our mind that the applicant was senior to respondents No. 3 and 4 and he was assigned in the seniority list earlier vide Annexure-A-2 in pursuance to directions of the Honble High Court in CWP supra as has been admitted by the respondent corporation itself. As such, subsequent change in his seniority position is not justified and is against the directions of Honble High Court. Thus, the action of Respondent Corporation is arbitrary and illegal and cannot be sustained. As a result the impugned order contained in Annexures-A-1 and A-7 are liable to be quashed being contrary to the directions of the Honble High Court as well as the law. 14. The Honble High Court Punjab and Haryana in case reported in 1997(2) SCT 48, has held that: "Where a person is found eligible for being promoted from the date his junior were promoted then he must be promoted from a day prior to his junior were promoted." 15. During the course of arguments learned Counsel for respondents has raised objection that the original application is barred by limitation. Although no such plea has been taken by the respondent corporation in their reply. 16. It is pertinent to mention here that as per Annexure A-7 which is seniority list issued on 19.10.1992 and the original application was filed on 7.4.1993 therefore; the contention of the respondent that the present original application is not within limitation is totally contrary to the record. 17. In the light of above premises the present Original Application is allowed in terms of the relief claimed for by the applicant with all consequential benefits and interest on the arrear payable at the rate of, the applicant could have been earned on his GPF, had the same amount remained deposited GPF during this period. Respondents are directed to comply with these directions within three months from this order. Original Application stands finally disposed of with no order as to costs. Application allowed.