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2019 DIGILAW 497 (HP)

H. P. State Forest Development Corporation Limited v. Suraj Bahadur

2019-04-29

SANDEEP SHARMA, SURYA KANT

body2019
JUDGMENT : Sandeep Sharma, J. The instant Letters Patent Appeals under Clause 10 of the Letters Patent Act of the Hon'ble High Court of Judicature at Lahore read with Section 10 of the Delhi High Court Act, as applicable to the State of Himachal Pradesh, have been filed laying challenge to two separate judgments filed by learned Single Judge of this Court i.e. judgment dated 8.5.2015 in CWP No. 4575 of 2012 and judgment dated 29.5.2015 in CWP No. 4543 of 2011, whereby writ petitions having been filed by the respondents-petitioners (hereinafter, 'petitioners') came to be allowed. While allowing aforesaid writ petitions, learned Single Judge directed the appellant-Corporation (hereinafter, 'Corporation') to redraw the Seniority List on the basis of length of service and to consider the case of the petitioners and other similarly situate persons for the post of Driver. Vide aforesaid judgments, Corporation was further directed to pay to salary of the post of Driver the petitioners with effect from the date they have discharged the duties of the said post. 2. For having a bird's eye view, necessary facts as emerge from the record are that the petitioners were appointed on daily wage basis as Cleaners against the vacancies on various dates during the years 1986 to 1994 and subsequently regularized on the said post during the years 1997, 2002, 2010 and 2007. In nutshell, case of the petitioners before the writ Court was that though they were appointed as Cleaners but they have been discharging duties of Drivers and as such, they are fully eligible to be considered for the post of Driver as per the Recruitment and Promotion Rules framed by the Corporation. With a view to substantiate their claim, petitioners placed on record certain documents and claimed that there are 94 posts of Drivers but only 52 incumbents are working on regular basis on the said post. The Corporation, while refuting aforesaid contention raised on behalf of the petitioner, claimed before the writ Court that the Corporation has drawn two separate Seniority Lists by dividing the cadre of the Cleaners in two categories i.e. (a) those who have been regularized from Daily Wage posts and, (b) those appointed on compassionate grounds. The Corporation also admitted that though the petitioners were regularized as Cleaners as per the Government policy, but they were occasionally entrusted the duties of driving the vehicles. The Corporation also admitted that though the petitioners were regularized as Cleaners as per the Government policy, but they were occasionally entrusted the duties of driving the vehicles. The Corporation claimed that the petitioners along with some other similarly situate persons were regularized against "personal posts" and such benefit was given to them as 'one-time' measure so as to save them from retrenchment as they were surplus in the Corporation. The Corporation also claimed that many officials are senior to that of the petitioners, who will be regularized as and when posts become vacant because, as per the Recruitment and Promotion Rules of the Corporation, for Drivers, the feeder category is of the Cleaners with three years of service along with other eligibility conditions, as such, regularisation, if made qua the petitioners only, same would lead to grave injustice to other similarly situate officials, who are senior to the petitioners and lead to their (petitioners) unjust enrichment. 3. Having heard learned counsel for the parties and perused the material available on record vis- -vis reasoning assigned by learned Single Judge, while allowing the writ petitions having been filed by the petitioners, we are not persuaded to interfere with the impugned judgments, which otherwise appear to be based upon proper appreciation of the facts as well as law. As per own case of the Corporation, it has drawn two separate Seniority Lists by dividing the cadre of Cleaners into two categories, as a result of which, it has created an artificial classification by treating homogenous class of Cleaners in two groups and such classification has no nexus with the object sought to be achieved. Petitioners along with other similarly situate persons came to be regularized in the Corporation against "personal posts" as per Government policy, but we cannot lose sight of the fact that they were initially appointed on Daily Wage basis as Cleaners on various dates against the vacancies. It is also not in dispute that the petitioners subsequently came to be regularized. Candidates, if any, appointed on compassionate basis against the posts of Cleaner, were required to be treated at par with the petitioners, who, admittedly, had joined the service as Cleaners in the Corporation on Daily Wage basis prior to the appointments made by the Corporation against the posts of Cleaners on compassionate ground, as such, they were required to be treated as one group. The nomenclature adopted by the Corporation i.e. "personal" and "cadre" posts is certainly against all canons of service jurisprudence, because Cleaners appointed by whatever mode, are Cleaners for all intents and purposes and there cannot be any artificial classification by giving separate designations as "personal" and "cadre" posts. Services of the petitioners might have been regularized in terms of the Policy Decision taken by the Government as one time measure against personal posts, however, the fact remains that they all were regularized as Cleaners, as such, there appears to be no justification in framing two Seniority Lists by dividing Cleaners into two categories i.e. those who are regularized from Daily Wage basis and those appointed on compassionate grounds. 4. Moreover, the post of Driver is/was to be filled by way of promotion from amongst the Cleaners, which is feeder category for the post of Driver and claim of the petitioners and other similarly situate persons, could not be defeated on the ground that they were regularized from Daily Wage posts against "personal posts", especially when persons, if any, also came to be appointed against the posts of Cleaners on regular basis on compassionate grounds, that too, after the regularisation of the petitioners. 5. Another argument having been advanced by Ms. Parmar, learned Senior Advocate that at the time of passing of judgments, writ Court had no jurisdiction because, by that time, Himachal Pradesh Administrative Tribunal had come into existence, deserves outright rejection for the reasons; (a) impugned judgments were passed in the presence of Mr. Pranay Pratap Singh, learned counsel for the Corporation and at no point of time, objection, if any, with regard to maintainability and jurisdiction of the writ Court came to be raised and; (b) petitioners had approached the writ Court when Himachal Pradesh Administrative Tribunal was not in existence. Leaving everything aside, it cannot be said that learned Single Judge had no jurisdiction to adjudicate upon the dispute, while exercising power under Article 226 of the Constitution of India. No doubt, an alternative Forum (Himachal Pradesh Administrative Tribunal) came to be established for the adjudication of the service disputes, but that did not strip learned Single Judge of the aforesaid power, as such, learned Single Judge was well within his domain, while disposing of the writ petitions. 6. In view of the aforesaid observations, we find no merit in both the appeals, which stand dismissed accordingly. 6. In view of the aforesaid observations, we find no merit in both the appeals, which stand dismissed accordingly. Pending miscellaneous applications, if any, in both the petitions, also stand disposed of.