Alok Jaitley vs U.P.Forest Corporation & Ors.

The learned counsel for respondents has filed counteraffidavit which is taken on record. Sri A. K. Bajpai, learned counsel for petitioner states that he does not wish to file rejoinder affidavit and the matter may be proceeded without the rejoinder affidavit. Accordingly the matter is being dealt with without the rejoinder affidavit.

By means of the present writ petition the petitioner has sought a writ of mandamus commanding the respondents not to treat the service between 371983 to 1261983 as a break in service for the purpose of counting the seniority of the petitioner on the post pay bill sealer. The said post of pay bill sealer is a post in the U.P. Forest Corporation. The recruitment and service condition of the employees of the Corporation are governed by the U.P. Forest Corporation framed under exercise of power under section 32 (1) of the U.P. Forest Corporation Act.

The claim of the petitioner is that he was initially appointed in the Corporation on seasonal basis as daily labour sealer in the year 1979 and continued as such till the year 1983. In the year 1983 the petitioner applied for appointment on the post of pay bills sealer after qualifying the basic physical test and the medical standard test, the written aptitude test and thereafter was appointed on the post of pay bill sealer. The letter of appointment (annexure1) shows that the appointment is temporary and for undertaking some work (Karya Sanchalanarth). The said appointment was also liable to be cancelled without any prior notice. The petitioner was also required to furnish the age certificate and health certificate by the Chief Medical Officer. Thereafter vide annexure2 dated 5th July, 1983 the petitioner was reverted back on the post of sealer daily labour but no reason for the said reversion was indicated therein. It has been stated in para 9 of the petition that after the aforesaid reversion the petitioner wrote a letter dated 1871983 to the concerned authority to know the reason why he has been reverted. Back and in response thereof, the petitioner was informed vide arjnexure3 dated 26th July, 1983 that he did not fulfill the minimum required standard of chest size and chest expansion size i.e 72 cm. to 77 cm.

Learned counsel for the petitioner further argued that vide annexure4 dated 13th July, 1986,'' the petitioner was reappointed as pay bill sealer and the recital in the order indicates that he was reappointed on account of his achieving the minimum required standard chest size.

It is the contention of the learned counsel for petitioner that the appointment of the petitioner on the post of pay bill sealer in the year 1983 vide letter of appointment dated 1111983 should be treated to be the date of substantive appointment of the petitioner on the said post and thereafter the reappointment vide order dated 13th July, 1986 should be treated to be in continuation of the appointment from the year 1983 on the post of pay bill sealer and the period between 5th July, 1983 i.e. the date of order by which the petitioner was reverted to the post of sealer daily labour and 13th July, 1986 i.e. the date of the order by which the petitioner was reappointed as pay bill sealer should be treated to be in continuity of the service on the post of pay bill sealer. His seniority should also be determined from the initial date of his appointment on the post of pay bill sealer that is 1111983 and therefore, placement of petitioner at SI. No. 100 in the seniority list annexed as Annexure5 is arbitrary and erroneous being patently illegal. The petitioner in his contention has relied upon the Rules6 Subclause4 (b) to demonstrate the induction into service. The aforesaid provision is quoted herein below.

"Sealers in the first instance shall be engaged on Daily Labour basis on monthly consolidated wages through prescribed test. They will be eligible for being brought on pay bill establishment, depending on the vacancy existing at any time, only after completion of at least 2 years period on daily labour, on the basis of seniority subject to rejection of unfit. Proper record of service including character rolls of all the Daily Labour sealers shall be maintained in the office of the Divisional Logging/Sales Manager.

The cadre in respect of Sealers shall be controlled by the concerned Regional Manager for all the Logging and Sales Divisions under his charge. For this purpose, the Regional Manager, shall maintain in his office a combined seniority list of Sealers on Daily Labour in the whole Region and any appointment to that post of Sealer on pay bill in that Region will be made on the basis of this seniority list."

According to the petitioner he was initially appointed as sealer daily labour on 1101979 and has continued in the same category until his appointment as pay bill sealer in the year 1983. According to the petitioner he was appointed after due physical test, written test and therefore, vide order 5th July, 1983 by which the petitioner was reverted back to the post of sealer daily labour was illegal and the said illegality was rectified by the authorities themselves by reappointing the petitioner on the post of pay bill sealer vide order dated 13th June, 1986 (Annexure4 to the writ petition) and therefore, he should be treated in continuous service from 1111983 on the post of pay bill sealer. For this purpose the petitioner has relied on Rule 11(1) which is quoted below.

No person shall be appointed to a post unless he is in good mental and bodily health and free from any physical defects likely to interfere with the efficient performance of his duties. For this purpose every candidate will be required to appear for medical examination before such authorised medical attendant as may be specified by the Corporation or by the Appointing Authority. In the absence of such authorisation, he shall appear before the Chief Medical Officer of his nominee. The Appointing Authority may direct medical examination of an employee at any time, during the period of his service, if he is satisfied that doing so will be in the interest of the Corporation. On his being found medically unfit, his services may be terminated.

He further contends that placing the petitioner at SI. No. 100 in the seniority list of the year 19.92 is patently illegal and the authorities be directed to place the petitioner at the relevant place in the seniority list treating him to have been appointed on 1111983 and not on 13th June, 1986.

Sri L. P. Shukla, learned counsel for respondent on the other hand has submitted that the writ petition is misconceived in as much as the petitioner never challenged the order of his reversion dated 571983 (annexure2), therefore, the same has become final and pursuant thereto the petitioner continued to work as sealer daily labour till 1986. He further submits that the reason for his reversion was made known to the petitioner that he did not have the prescribed minimum standard of chest measurement vide communication dated 26th July, 1983(annexure3) to the writ petition. It was further argued by the learned counsel for respondent that if the petitioner had any grievance, he should have challenged the reason of his reversion as communicated to him vide annexure 3 i.e. the letter dated 2671983 and having not done so, the petitioner accepted his position and status as sealer daily labour.

Learned counsel further argued that the petitioner''s engagement as pay bill sealer came to an end on the date of the passing of the order of his reversion dated 571983 which was never challenged. However, when the petitioner finally did achieve the minimum required chest measurement, he was reappointed on the post of pay bill sealer vide order dated 13th June, 1986 therefore, the petitioner''s appointment on the post of pay bill sealer has rightly been treated to be from the date of his reappointment vide order dated 13th June, 1986 (annexure4) to the writ petition. Learned counsel for respondent has further urged that earlier a seniority list was published in the year 19881989 of pay bill sealer in which the petitioner''s name was at SI. No. 122. The said seniority list was circulated vide letter dated 30101988. In the aforesaid seniority list also the petitioner was treated to have been appointed on the post of pay bill sealer from 1261986. According to the counsel for the respondent this seniority list was also never challenged by the petitioner and he accepted his appointment on the post of pay bill sealer from 1261986.

I have heard the arguments of Sri. A. K. Bajpai, learned counsel for petitioner and Sri. L. P. Shukla learned counsel for respondent and have perused the record.

In my opinion there is force in the contention of the learned counsel for respondent that although the petitioner was appointed on the post of pay bill sealer in the year 1983 but on being found that he did not possess the minimum required standard chest size, he was reverted by order dated 5th July, 1986. The said order of reversion was neither objected to nor ever challenged by the petitioner, I therefore, it has to be presumed that he accepted the said order and the same became final. When the petitioner finally did achieve the minimum required chest size and he having fulfilled the other requirements was appointed on the post of pay bill sealer in the year 1986 and he continued in the same fashion without any objection till the date of filing of the writ petition as such it has to be held that the petitioner''s initial appointment as pay bill sealer vide order order dated 1111983 did not fructify into a substantive appointment of the petitioner as he was reverted by order dated 5th July, 1986 and that order of reversion having become final in absence of any challenge to the same, the initial appointment of the petitioner on the post of pay bill sealer got obliterated and it lost its value and no right can accrue upon the petitioner on the basis of the aforesaid order.

The only logical conclusion that can be drawn is that when the petitioner was reappointed in the year 1986 on the post of pay bill sealer his seniority can be and has to be determined only from the date of his reappointment as pay bill sealer from 13th June, 1986.

The learned counsel for the petitioner in support of his contention has relied on the case of Dr. Chandra Prakash and others v. State of U.P. and another reported in (2002) 10 SCC, 710 : (2003 All LJ 227). State of Punjab and others v. Rupinder Kawal Sahib and others, reported in (2002) 10 SCC 179 and Rudra Kumar Sain and others v. Union of India and others reported in (2000)8 SCC, 25 : (AIR 2000 SC 2808).

The aforesaid decisions as stated by the petitioner are the cases where the petitioners in those cases were earlier appointed but the approval of the prescribed authority was granted subsequently and therefore, it was held that for determination of seniority i.e the date when the petitioner was initially appointed would be relevant. In the present case the aforesaid decisions are distinguishable on facts and also in law as the petitioner''s appointment on the post of pay bill sealer on 1111983 survived only for a period of few months and thereafter it came to an end by an order of reversion dated 571983. That order of reversion having become final in absence of any challenge to the same, it cannot be said that the petitioner continued on the post of pay bill sealer right from the date of his initial appointment till the date of his reappointment i.e 13th June, 1986. The order of appointment of the petitioner on the post of pay bill sealer is dated 13th June, 1986 and it is a fresh order of appointment and his seniority has to be treated from that date alone and therefore, the authorities were right in determining the seniority of the petitioner from the date of his fresh appointment that is 13th June, 1986.

At this stage it would be relevant to point out that the learned counsel for respondent has raised a preliminary objection that the petitioner has not made party any of those persons whose seniority would be effected, and the writ petitions is liable to be dismissed on account of nonjoinder of the necessary parties.

After hearing counsel for both the parties, since the court has gone into merits of the case and has found no illegality in action of the respondent, the question regarding nonjoinder of parties is not being taken into account.

Upon the facts and circumstances of the case stated above, the writ petition lacks merits and deserves to be dismissed.

The writ petition is accordingly dismissed.

The parties shall bear their own costs.