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2009 DIGILAW 512 (JK)

State Forest Corp. , J&K v. Subash Chander

2009-10-28

MOHAMMAD YAQOOB MIR, VIRENDER SINGH

body2009
1. This LPA is directed against the judgment passed by learned Writ Court dated 6th of May, 2008, where-under respondent No.1, Subash Chander, has been directed to be given the benefit as has been given to respondent No.5, Anjali Karihaloo. 2. Grievance of the appellant Corporation is that the respondent No.1 was not entitled to claim the benefit as has been given to respondent No.5 as the respondent No.5 stood on a different footing as compared to the respondent No.l. According to the appellant respondent No.5 along with five other persons was engaged as daily wager in the year 1989. In the year 1993 when SRO 64 was not in force, the appellant Corporation appointed some daily wagers on regular establishment. While doing so vacancies were distributed. Each SFC Division was provided 1 to 3 posts of Class IVth/Field Assistant/Junior Assistant for adjustment except Vigilance Division, Jammu. Respondent No.5 at the relevant time was posted in Vigilance Division, Jammu, therefore, was not appointed as Junior Assistant. Subsequently when SRO 64 came into force, respondent No.5 along with other daily wagers was regularised as Office Helper but she continued to project her case for being appointed as Junior Assistant on parity basis. She had also filed a writ petition, finally she moved a representation before the Honble Minister concerned, as a result thereof, she in the capacity of Office Helper was promoted as Junior Assistant (Typist) vide SFC order No. 106 of 2006 dated 25.4.2006. 3. It is contended that the seniority position in the cadre of Helper is of no consequence. Respondent No.5 in the peculiar facts was promoted as Junior Assistant (Typist). It is further contended that if the impugned judgment is sustained, there would be chaos in the administration of the appellant Corporation as there are number of persons who are senior to respondent No.5 who will claim the same benefit. 4. The admitted position is that respondent No.1 was engaged as a daily wager in the year 1987, thereafter he was regularised and appointed as Office Helper on 1.4.1995. The respondent No.5 has been engaged as daily wager in the year 1989 and regularised as Office Helper on 1.4.1997. The position of respondent No.1 being senior to the respondent No.5 is not denied. The respondent No.5 has been engaged as daily wager in the year 1989 and regularised as Office Helper on 1.4.1997. The position of respondent No.1 being senior to the respondent No.5 is not denied. The seniority list of Office Helpers of Jammu region as prepared by the appellant Corporation, copy whereof is placed on record would clearly indicate that the respondent No.1 figure at serial No. 14 whereas respondent No.5 figures at serial No.40. the order of appointment dated 25.4.2006 issued in favour of respondent no.5 clearly reveal that the respondent No.5 in the position of Office Helper has been promoted as Junior Assistant. The regularisation of respondent No.5 as Office Helper is clearly indicated to be on 1.4.1997 means she has been promoted over and above her number of seniors. All other seniors who have challenged her promotion made in the year 2006 shall have every right to claim the same benefit. Senior Office Helpers who have not challenged the appointment of respondent No.5 till end of 2006 cannot now claim any benefit as shall be available to the persons who have challenged the same until 2006 which include the respondent No. 1. 5. The learned Writ Court has correctly appreciated the fact that the respondent No.5 had grievance against the adjustment of her juniors to the post of Junior Assistant. The position of those 4/5 persons appointed has neither been disturbed nor revoked, therefore, respondent No.5 cannot be deprived of that benefit but at the same time learned Writ Court has opined that the respondent No.l had not challenged the appointment of those five persons at the relevant time as he was senior to them also but now he has expressed grievance against the promotion of respondent No.5 which has been made in the year 2006 when in the seniority list of Office Helper respondent No.5 admittedly is much junior to the respondent No.l so could not be promoted validly over and above the respondent No.l. The learned Writ Court for balancing the equities and for promoting the cause of justice has rightly opined that the respondent No.l (petitioner before the Writ Court) shall be similarly treated without disturbing the promotion of respondent No.5, which means that the promotion of respondent No.l shall be prospective. 6. 6. It is contended by the appellant Corporation that there shall be chaos in the administration of the Corporation because all other seniors will claim the same benefit, but same position is protected i.e. those senior Office Helpers who have not challenged the promotion of respondent No.5 cannot claim such benefit. However, the senior Office Helpers who have challenged the said promotion can claim the benefit. It is made clear that it shall not be open for other seniors now to claim any benefit for the reason that they have not challenged the promotion of respondent No.5. 7. The appellant in SFC order No.87 of 2006 dated 2.4.2006 have emphatically examined the matter wherein it is clearly indicated that as per J&K SFC (Condition of Service), 1993, the criteria laid down for promotion to the post of Junior Assistant/Field Assistant is as under:- Name of Post Criteria for promotion Junior Assistant Promotion from class-IV amongst matriculates Field Assistant Matric and possessing physical standards as prescribed from time to time. 8. It is also made clear that in terms of SRO 64 of 1994, there is no criteria for regularising the daily rated workers on higher posts. Prior to enforcement of SRO 64, there was no method/consistent policy for regularisation of daily rated workers in the Corporation. For appointment to the post of Junior Assistant, there was no criteria of adopting inter se senior of the daily wagers nor any such seniority was maintained. On the basis of availability of posts, some daily wagers were appointed on regular establishment. 9. While appreciating the said scenario, learned Writ Court correctly ordered that without disturbing the promotion of respondent No.5, respondent No.l shall be given the same benefit. 10. The appellant has not been able to point out any legal or factual defect in the judgment which would warrant interference. The position of respondent No.5 on the other hand is being defended by the appellant Corporation whereas position of the respondent No.1 is being opposed which is totally illogical. As noticed hereinabove, both respondent No.1 and respondent No.5 are Office Helpers, both figure in the seniority list of Office Helpers as prepared by the appellant Corporation. The position of respondent No.5 on the other hand is being defended by the appellant Corporation whereas position of the respondent No.1 is being opposed which is totally illogical. As noticed hereinabove, both respondent No.1 and respondent No.5 are Office Helpers, both figure in the seniority list of Office Helpers as prepared by the appellant Corporation. The position of their seniority as noticed above and more clearly indicated in the seniority list is suggestive of the fact that in case respondent No.l (writ petitioner before the writ court) is not given the same benefit, same shall be travesty of justice. The illogical and unfounded stand of the appellant has to be negated. The concern of the appellant Corporation that in case respondent No.1, who admittedly figure at serial No.14 in the seniority list of Office Helpers, is given same benefit as has been given to respondent No.5, same will give rise to a situation wherein all the Office Helpers who rank senior to the respondent No.5 among Office Helpers will all claim the same benefit. It is no more res integra that it is only those who have challenged any wrong committed vis-a-vis their rights can claim the same benefit. It shall not be open for rest of the seniors who have not challenged the position of respondent No.5 and may have been waiting for the results so as to launch action to claim such benefit. 11. Thus having not challenged the appointment of respondent No.5 as Junior Assistant seem to have relinquished their claim. 12. The judgment impugned is not interfereable, as such, sustained. The appeal is dismissed.