H.P. State Forest Development Corporation and Others vs Ashok Kumar and Others

Justice Rajiv Sharma, J.

CMP (M) No. 1415 of 2011.

Heard. Application is allowed and the delay in filing the appeal is condoned. Application stands disposed of.

LPA No. 387 of 2011.

This Letter Patent Appeal is directed against the judgment of the learned single Judge dated 16.12.2010 rendered in Ashok Kumar v. H.P. State Forest Corporation and Ors. CWP (T) No. 7251 of 2008.

Material facts necessary for the adjudication of this letter patent appeal are that the Respondent/Petitioner (hereinafter referred to as "the workman" for convenience sake) was engaged as Timber Watcher on 2.4.1988. Private Respondents in the writ petition, namely, Manohar Lal and Rai Singh were also engaged as Timber Watchers on 19.4.1988. However, they were promoted to the post of Forest Guard on 11.10.1995 on the basis of order dated 7.8.1995 of the Respondent-Corporation. The workman filed an original application before the erstwhile learned Himachal Pradesh Administrative Tribunal. The same was converted to CWP(T) No. 7251 of 2008 after the abolition of the learned Tribunal. The learned single Judge allowed the writ petition preferred by the workman on 16.12.2010.

Mr. Javindera Katoch, Learned Counsel for the Appellants has strenuously argued that the learned single Judge has erred in law by allowing the writ petition on 16.12.2010. According to him, the Appellant-Corporation has been maintaining seniority lists at three different levels; i.e. North Zone, South Zone and Marketing. He has also relied upon the decision of the Board of Directors, dated 22.1.1985 whereby a decision was taken to prepare the seniority lists zone-wise and to make promotions on the basis of zone-wise seniority lists.

We have heard Mr. Jivendera Katoch, Learned Counsel for the Appellants at length and gone through the pleadings carefully.

It is not in dispute that the Respondent-workman, namely, Ashok Kumar was senior to the private Respondents. The relevant Clause 3.4(a) and 3.4(b) of the service Bye Laws reads as under:

Clause 3.4 (a) (iv) (Board Decision Dated 22.5.1987):

(iv) Seniority of Ex Servicemen on their re-employment in the service of the Corporation will be fixed in accordance with the instructions of H.P. Government in force from time to time.

(b) Promotions.

All promotions to posts under the Corporation shall be made on the basis of merit-cum-seniority and no person shall have a right to be promoted to any posts on the basis of seniority alone.

Amendment to Clause 3.4 (b) (Board Decision Dated 31.3.1979).

(b) "All promotions to the posts under the Corporation shall be made on the basis of seniority subject to fitness in respect of posts carrying maximum pay scale of Rs. 900/-

According to these Bye Laws, the promotions are to be made in the Corporation on the basis of seniority subject to fitness in respect of posts carrying maximum pay scale of Rs. 900/-. There is no distinction made on the zone-wise seniority. There is no merit in the contention of Mr. Jivendera Katoch that different cadres of Timber Watchers were created. There is only one cadre, i.e. Timber Watcher. The cadres are created under the Recruitment and Promotion Rules. The decision of the Board of Directors relied upon by the Appellant-Corporation; dated 22.1.1985 cannot be contrary to the Service Bye Laws. The learned single Judge has also referred to the Recruitment and Promotion Rules of other employees (Field Staff). According to these Rules also, the promotion to the post of Forest Guard is to be made on the basis of common seniority list and not the seniority list drawn on zone-wise basis. In case the contention of the Appellant-Corporation is accepted, it will amount to violation of Articles 14 and 16 of the Constitution of India. A person, who is senior in a particular zone, would be ignored for promotion to the post of Forest Guard and a person junior to him in the other zone would be promoted to the post of Forest Guard on the basis of seniority list drawn on zone-wise basis. In the instant case also, the Respondent-workman was senior to the private Respondents, but they had been promoted to the post of Forest Guard on 11.10.1995 and the Petitioner has been ignored. It amounts to denial of equality of opportunity to the Timber Watchers. There has to be a common seniority list to be prepared on the basis of Recruitment and Promotion Rules or in case there are no Recruitment and promotion Rules, on the basis of length of service. Consequently, there is no illegality in the judgment passed by the learned single Judge, dated 16.12.2010.

Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this letter patent appeal and the same is dismissed, so also the pending application(s), if any. No costs.