Allahabad High Court
Ram Shanker Yadav vs Regional Manager, South Region, U.P. ... on 15 July, 1999
Equivalent citations: (1999)3UPLBEC2119
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. In all these cases common questions of law and facts being involved, by consent of parties it was agreed that those may be taken up together. with permission of the Court, counsel for the respondents Mr. V. K. Singh has filed a counter affidavit in writ petition No. 3591 of 1999 which has to be treated as counter affidavit to all the other writ petitions. There is no dispute with regard to the facts made out in the writ petition, Mr. V. M. Zaidi, learned counsel addressed the Court on behalf of the petitioners in Writ Petition Nos. 8566 of 1999, 8911 of 1999, 18395 of 1999 and 18775 of 1999. Mr. Rakesh Kumar Shukla counsel for the petitioner addressed the Court on behalf of the petitioners in writ petition Nos. 5726 of 1999, 8564 of 1999, 8566 of 1999 and 14372 of 1999. Mr. I. R. Singh learned counsel for the petitioner addressed the Court on behalf of the petitioner in writ petition No. 3591 of 1999 Mr. V. K. Singh, learned counsel represented the respondents in all these cases and had addressed the Court. The matter was taken up for hearing on successive dates and the hearing was concluded on 14th July, 1999 and the matter has been placed for orders today.
2. The main question that requires determination by the Court is as to whether the order of reversion passed by the respondents in respect of each of these petitions on respective dates are legal and valid and can be sustained. The facts of each case are almost identical. It is contended by each of the petitioners that they were appointed as regular scalers after having qualified for being so appointed according to U.P. Forest Corporation General Service Regulations on the respective dates. The order of reversion therefore, cannot be sustained. The particulars of the respective dates on which each of these petitioners were initially appointed in the department and were appointed as daily labour scalers (hereinafter referred to as the D.L. Sealers) show that apart from minor discrepancies in the dates and the posts in which initial appointments were made virtually each of the case of the petitioners is identical.
3. Some of the employees of the department had filed writ petitions in the Lucknow Bench in respect of various grievances confined to those persons. All these cases were grouped together and were disposed of by one single Judgment by the learned Single Judge of the Lucknow Bench of this Court. The leading case in the Lucknow Bench was Van Nigam Karmachari Kalyan Sangh, U.P. Gorakhpur v. U.P. Forest Corporation and Ors., Writ Petition No. 4209 of 1988 has since been disposed of on 12th July, 1994 ultimately. In the said judgment, the petitioners involved the different cases grouped together were categorised and a general order was passed for fixing region wise seniority of scalers both daily labour and regular according to the direction given in the said judgment and refixing the seniority in the light of the direction given therein. However, while fixing such seniority afresh and carrying out the terms of the direction contained in the said judgment, the department was granted liberty even to revert regular scalers of D. L. Sealers after however, giving notice to the incumbent. It is alleged that such notices were issued to each of these petitioners including all other similarly situated candidates and thereafter, the order of reversion was issued as pointed out above. These orders of reversion have since been challenged in each of these petitions.
4. Except Shri Ramesh Rao, the petitioner in writ petition No. 13646 of 1999 all other petitioners in the respective writ petitions were initially appointed in South Region either as D. L. Sealers or in some other posts before being appointed as D. L. Sealers whereas Ramesh Rao was appointed as field assistant in Eastern Region, Gorakhpur initially, but subsequently, he took up a fresh appointment in South Region on 7th September, 1994 as D. L. scaler. In the Writ Petition No. 13646 of 1999, the petitioner Ramesh Rao has not disclosed as to how he came to south Region. He has only disclosed that he had been in service since 7th November, 1982 in paragraph 8 of this petition while stating that for the first time he was given employment in the year 1982-83 by the regional Logging Manager on the post of Field Assistant and had worked continuously in the said post for the years 1982-83 and 1983-84 and he had relied on a certificate being Annexure-1 to the writ petition issued by the Logging Manager, South Gorakhpur, which is admittedly in Eastern Region, But nowhere in the writ petition it is disclosed as to how he came to south Region. Though he has mentioned the date 7th September, 1984, but no where in writ petition he has given his date of joining in south Region. The date 7th September, 1984 has been mentioned in the paragraph 17 of this writ petition to the extent that his first appointment was wrongly shown as 7th September, 1984. Apart from the statement, there is nothing to show when and how the petitioner came to south Region. Only from Annexure-2 to the Writ Petition No. 13646 of 1999, Mr. Hari Shanker Misra, learned counsel for the petitioner south to point out that the petitioner was transferred to Allahabad but the same annexrue is not an order of transfer. It is dated 30th September, 1986 by which the petitioner was appointed temporarily as scaler and was posted at Salarpur Depot at southern Region. Thus, the said document does not show as to how the petitioner Ramesh Rao has come to southern Region. It also not disputed that the petitioner had come to southern region. But the petitioner having not disposed any date as to when and how he came to southern region, the statement made in the Supplementary Counter Affidavit that the petitioner was appointed afresh at Southern Ragion on 7th September, 1984 is to be accepted, though however he claims that his seniority is to be counted from 7th November, 1982 and the order of reversion dated 6th February, 1999, from the post of scaler to which he was appointed on 27th September, 1986 after he had the prescribed test, cannot be sustained.
5. Apart from the distinguishing feature in the case of Ramesh Rao, all the other cases are identical. In writ petition No. 3591 of 1999 Rama shanker Yadav alleges to have been appointed on 13th April, 1983 in a Class-IV post on daily wages. He passed the written examination for the post of scaler in 1985. He was selected for the post of scaler and was placed at serial No. 23 in oreer of merit/seniority in the division. The petitioner was informed of this fact by a letter dated 2nd February, 1990. Subsequently, he was shown in serial No. 84 the merit-cu-seniority list region wise by a letter dated 10th August, 1990 (Annexure-1 to this writ petition). He was brought on pay bill scaler namely, the post of regular scaler (hereinafter referred to as "scaler") on 6th August, 1991 by an appointment letter issued on the same date (Annexure-II). By a notice dated 9th February, 1998 (Annexure-III), the petitioner was given a notice to show .cause as to why he should not be reverted to the post of D. L. Sealer by reason of the decision dated 12th July, 1994 given by this court (Lucknow Bench). The petitioner appears to have cause pursuant the said notice on 21st March, 1998 which is Annexure-IV to this writ petition. Thereafter, by an order dated 14th July, 1999 (Annexure-V), the petitioner was reverted to the post of D. L. Sealer in terms of the Court's order dated 12th July, 1994. This order has since been challenged in this writ petition.
6. In Writ Petition No. 5726 of 1999, the petitioner Sri Magan Ram alleges to have been appointed in a Class-IV post on 7th February, 1983 and had passed the test for the post of scaler in 1985 and was placed at Serial No. 12 division wise seniority since informed by letter dated 2nd February, 1990 (Annexure-1) and thereafter, he was appointed in the post of scaler on 27th July, 1990 (Annexure-II) a similar show cause notice was issued to him on 7th February, 1998 (Annexure-III) which the petitioner submitted his reply on 1st March, 1998 (Annexure-IV). The petitioner was sought to be reverted to the post of D. L. Sealer by an order 19th January, 1999 which order has since been impugned in this writ petition.
7. The petitioners Rajendra Prasad Pandey and Hausila Prasad Pandey in Writ Petition No. 8564 of 1999 alleged to have been appointed on Class-IV posts on 6th January, 1983 and 6th May, 1983 respectively and had passed the written test for the post of scaler in 1985. Appointment and posting order was issued to Sri R. P. Pandey on 30th September, 1986 (Annexure-1) Sri Hausila Prasad Pandey was recommended for appointment on the post of scaler on 29th January, 1992 (Annexure-II) and threafter and appointment order was issued in his favour where he joined in 19th February, 1992. They were issued with the show cause notice on 7th February, 1998. by two separate orders dated 27th January, 1999 both Sri R. P. Pandey and H. P. Pandey were reverted to the post of D. L. Sealers which is under challenge in this writ petition.
8. The petitioner, Sri Ram Niwas Singh in Writ Petition No. 8566 of 1999 alleges to have been appointed on the post of D. L. Sealer on 1st May, 1983 and had passed the written test in 1985 and he was posted as scaler on 10th September, 1991 (Annexure-1) similarly, he was asked to show cause by a notice dated 25th February, 1998 (Annexure-II). The petitioner submitted his detailed reply on 15th April, 1998 (Annexure-III). By an order dated 19th January, 1999 he was reverted to the post of D. L. Sealer (Annexure-4). This order is under challenge in this writ petition.
9. The petitioner, Kamalapati Yadav in Writ Petition No. 8911 of 1999 alleges to have been appointed on 2nd February, 1983 as seasonal scaler and his name finds place at Serial No. 14 of the division wise list. He was appointed in the post of scaler on 20th June, 1990 (Annexure-2), However, he has not stated as to when he had passed the test for the post of scaler, according to hem, the seniority list prepared on 7th October, 1998 is incorrect. A similar notice was issued to him on 18th January, 1999 to which he had replied on 29th January, 1999 (Annexure-7). By an order dated 6th February, 1999 (Armexure-8), the petitioner was reverted to the post of D. L. Sealer. This order is inpugned in the present writ petition.
10. The petitioner, Lal Bahadur Patel in Writ Petition No. 8912 of 1999 alleges to have been appointed in the post of scaler on 15th April, 1983 on daily wage basis and had passed the test in 1985 and was appointed to the post of scaler on 19th August, 1991 (Annexure-2), Similarly, a notice was issued on 18th January, 1999. The petitioner submitted his reply on 27th' January, 1999 (Annexure-5). By an order dated 4th February, 1999 (Annexure-6), he was reverted to the post to D. L. Sealer. This order is subject matter of challenge in the present writ petition.
11. The petitioner, Sri Kailash Singh in Writ Petition No. 14372 of 1999 alleges that he was appointed in the post of D.L. Sealer on 7th, May, 1983 and had passed the test in 1985 and was posted as scaler on 1st February, 1992 (Annexure-1). A similar show-cause notice was issued to him on 7th February, 1998 (Annexure-3) to which he had submitted his reply on 7th March 1999. Thereafter, he was reverted to the post of D. L. Sealer on 4th February, 1999 (Annexure-5). This order has since been challenged in the present writ petition.
12. The petitioner, Ramesh Rao in Writ Petition No. 13646 of 1999 has already been dealt with here-in-before separately.
13. The petitioner, Dadan Pandey in Writ Petition No. 18395 of 1999 alleges that he was appointed as Chowkidar on 18th August, 1983 (Annexure-1). After having passed the test he was appointed as scaler on 30th September, 1986 (Annexure-II). A similar show cause notice was issued to him to which he submitted his reply. This statement is made in paragraph 8 of the writ petition without, however, disclosing the date of the show cause notice and the date of reply. The petitioner was reverted to the post of D. L. Sealer by and order dated 22th March, 1999 (Annexure-3) which is impugned in the writ petition.
14. The petitioner, Tilak Dhari Upadhyay in Writ Petition No. 18775 of 1999 alleges to have been appointed on 9th February, 1999 without disclosing the post on which he was appointed as is apparent from paragraph 2 of the said petition. After having passed the test in 1985, the petitioner was appointed in the post of the Sealer on 9th February, 1993 pursuant to the selection list dated 20th June, 1990. Similarly, he was asked to show cause by a notice to which he had submitted his reply whereafter he was reverted to the post to D. L. Sealer on 22nd March, 1999 which is impugned in the present writ petition.
15. In each of the cases, it is alleged that all the seniority lists were prepared one after the other changing the seniority position. After having heard learned counsel for the respective parties, it appears that the main question which requires determination is as to whether the seniority list could be prepared on the basis of initial appointment as D. L. Sealer after reverting the petitioners as D. L. Sealers when they had already been promoted to the post following due procedure as has been contented by the respective counsel for the petitioners. While arguing the case various points were taken by the respective counsel in support of the respective cases as is recorded hear-m-after.
16. Mr. I. R. Singh had contended that the reversion was effected pursuant to the order dated 12th July, 1994 passed by the Lucknow Bench in the case of van Nigam Karmachah Kalyan Sangh (supra) to which the petitioners were not parties and as such the decision therein cannot be binding on the petitioners and their appointment could not be cancelled and they could not be reverted pursuant to the direction contained in the said judgment. Mr. V. M. Zaidi, Mr. H. R. Mishra and Mr. R. K. Shukla had adopted the said argument, It is next contended by the counsel for the respective petitioners that once the petitioners had been posted in the post of scaler following due process, the same could not' be cancelled and the petitioners could not be reverted even if there is any infraction in the seniority list. It is also contended that the seniority list which was prepared earlier could not be recasted so far as these petitioners are concerned who were not parties to the list between van Nigam Karmachah Kalyan Sangh (supra) and others and the petitioners in the respective groups of cases before the Lucknow Bench and the respondents. According to them, there are two tests, one for appointment on DL scaler and the other for scaler. The petitioners having been subjected to the regular selection for the post of scaler in 1985 after having put in some years of service as D. L. Sealer. The selection shall be treated as that of for selection as regular scaler and as the appointment of the petitioners as scaler was valid and legal and could not be cancelled nor could the petitioners be reverted. On these grounds, the petitioner have challenged the impugned order of reversion and seek quashing thereof.
17. Mr. V. K. Singh, learned counsel for the respondents on the other hand contends that there is only one test for the purpose of appointment in the post of scaler after the U.P. Forest Corporation Service Regulation came into force with effect from 1st April, 1985 (hereinafter referred to as the said 'regulation'). Initially scalers are to be appointed on daily labour basis and they would be brought to pay bill namely, scaler solely on the basis of the seniority subject to rejection of unfit for which no further test is prescribed. According to him, had there not been the judgment in the case of Van Nigam Karmachari Kalyan Sangh (supra), the question of reversion would not have been cropped and the question would have been different. But since the decision dated 12th July, 1994 has reopened the entire situation and had given direction for preparation of fresh seniority list and remove all anomalies and adjust the situation with the direction even to the extent that these brought on pay bill/appointed scaler could be reverted after giving notice to them if it was not done according to the seniority. A reading of the decision in the case of Van Nigam Karmachari Kalyan Sangh shows that it has given elaborate direction for refixing seniority even by reverting in appropriate case those who have been posted as scaler, if it is found that according to the seniority so determined anew he is not entitled to the post. He relies on various regulation to drive home his contention and justify the preparation of the final seniority list and reversion of each of the petitioners.
18. In order to appreciate the situation it would be useful to refer to the decision dated 12th July, 1994 in Van Nigam Karmachari Kalyan Sangh (supra). In the said case, a group of cases were taken up together. There was various questions which were raised in those group of petitions. One of the questions that was raised in relation to the anomaly of fixation of seniority and anomaly in appointment in the post of scaler without following the region-wise seniority. Though the seniority is to be maintained region wise, sometimes appointment in the post of scaler was made on the basis of division wise seniority, while in the region many seniors to the persons appointed scaler division wise were overlooked. In this background, the learned Single Judge of the Lucknow Bench had categorised various kinds of cases involved in those group of cases and the cases were dealt with according to the categories as categorised therein The categorise 3,3-A, 4, 4-A were grouped together having common features which involved determination as to whether the appointment of DL scalers to the post of pay bill scalers in their respective division would be rendered invalid and ineffective on the ground of their seniority being compared regional basis according to the Regulation. There is a distinction between 3 and 3-A on one hand and the category 4 and 4-A on the other, similarly, there is further distinction between category 4 and 4-A. A perusal of the said judgment shows that each of these petitioners fall in category 4-A. In as much as category 4-A includes those DL scalers who were appointed as scalers after 1987 on the basis of division wise seniority. There was claims and counter claims between category 3, 3-A and 4, 4-A. All those claims could not be decided individually, since if the category 3, 3-A are preferred then category 4, 4-A would be aggrieved Similarly, if the category 4, 4-A are preferred, then category 3, 3-A would be aggrieved. All categories were brought at par and various direction were issued for preparation of the seniority list of DL scaler afresh and then on the basis of such seniority appointment to the post of scaler be given. Various direction numbered consecutively have since been issued in respect of all the group of cases. For our present purpose, we are concerned with the direction contained in clauses ix, x, x-A, xi, xii, xiii, xiv respectively which are quoted below :
ix. The seniority of stump markers who have been engaged as scalers on daily labour basis, should be computed from the date they have been engaged as scalers on daily labour basis, if they were engaged as scalers on daily labour basis after the prescribed test.
x. The seniority of field assistants should be treated at par with scalers appointed on daily labour basis and the period of service rendered by them as field assistants would not be ignored in computing their seniority with scalers on daily labour vasis if they have passed the requisite test as prescribed for engagement of scalers on daily labour basis.
x-A. The orders of cancellation of appointment of those field assistants who have brought on pay bill as daily labour scaler? are quashed. However, it will be open for the opposite parties to cancel such appointment of such persons of they do not come within the field of eligibility or seniority, after giving them as an opportunity to show cause.
xi. The seniority of the daily labour scalers should be understood to mean seniority on regional basis in accordance with the provisions contained in Regulation. Hence, the seniority of the daily labour scalers, with effect from 1.4.1985 on regional basis, shall be strictly adhered to and their seniority in the region will be counted from the date of their initial engagement. The writ petitions of category 3 and 3-A are thus allowed. The opposite parties are commanded, to determine the seniority of scalers on regional basis.
xii. As far as petitioners of writ petitions of category 4 and 4-A are concerned, opposite parties would be free to revert them, from scalers on pay bill to scalers on daily labour basis after giving them a notice to show cause against the same. It is made clear that except an opportunity to submit an explanation within the specified period, no more opportunity will be required to be given.
xiii. The cases of daily labour scalers who were brought on pay bill on the basis of division wise seniority shall be reviewed/reconsidered and appropriate orders be passed by the authorities of the corporation.
xiv. In case opposite parties chooses not to reconsider/review the cases of daily labour scalers who have bought on pay bill on the basis of division wise seniority persons senior to them will also be brought on pay bill. Those Group-D employees who has failed in the test prescribed for scalers on daily labour basis may be adjusted as Group-D employees, but those who have passed the test be engaged as scalers as daily labour basis and their seniority would reopen from the date they were so engaged.
19. If the above direction are summarised in that event it would mean that the seniority of all D. L. Sealers are to be consolidated region wise and recanted on the basis of their appointment as D. L. Sealer if necessary, by reverting those scalers appointed on division wise seniority and fill up the post of scalers on the basis of seniority so it determined. In case D. L. Sealers brought on pay bill on the basis of division wise seniority are retained in the event, all seniors region wise are to be appointed as scaler.
20. In such circumstances, it is contended by Mr. V. K. Singh that there being limited number of scalers (161 posts), it is not possible to accommodate all seniors to the D. L. Sealers on the division wise seniority since a number of such D. L. Sealers on the basis of region wise seniority would far out-number the availability of the post of scaler. In terms of the direction contained in the said direction, the respondents are bound to comply with the same within a specified time. Therefore, it was decided by the respondents to refix the seniority in terms of the said direction and in the process the scalers appointment on division wise seniority were sought to reverted in terms of Clause-(x-A) after giving them an opportunity to show cause, since there were several seniors region wise to these petitioners, they could not be retained as scaler on their appointment of division wise seniority.
21. A reading of this direction clearly indicates that such a step could be taken by the respondents in or order to comply the said direction. That there are 161 posts of scalers is not a disputed question, since the said decision has reopened the whole case and had issued direction for recasting the seniority list in order to remove the anomaly which were involved in the said group cases as are raised in the present case. It is immaterial whether the petitioners were parties before the Lucknow Bench or not. When a general order has been passed to remove various discrepancies, in that event, it is not open to a person enjoying any advantage on account of such discrepancies apparent on the face of record to contend that his case cannot be reopened in terms of such general order which seeks on to remove injustice and do justice according to the legal right available to each of the persons. If in law the petitioners cannot claim any special privilege or legal right to retain their posts as scaler on the basis of the Regulation or law governing the field, in that event, they cannot claim immunity from the impact of the said judgment or decision contained in the direction. If it can be shown that the petitioners were given appointment through due process then however, the same could not be reopened in terms of the general direction.
22. Therefore, let us examine as to whether the petitioners were appointed as scalers through due process. In order to ascertain the same, it would be necessary to refer to various provisions of the Regulations by which the petitioners are governed. Chapter-II of the said Regulations deals with general condition of recruitment. Regulation 6(4)(a) to 6(5) would be relevant for our present purpose which are quoted below :
(4) (a) control on the cadre for the various posts entertained on the basis of norms shall be exercised by the authority next higher to the appointing authority cadre of scalers
(b) scalers 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 charater rolls of all the Daily Labour scalers shall be maintained in the office of the Divisional Logging/sales Manager.
The cadre in respect of scalers shall be controlled by the concerned Regional Manager, for all the Logging and Sales Divisions under this charge. For this purpose, the Regional Manager, shall maintain in his office a combined seniority list of scaler on Daily Labour in the whole Region and any appointment to the pest of scaler on pay bill in that Region will be made on the basis of this seniority list.
For this purpose, each D.L.M./D.S.M. shall intimate to the Regional Manager at least three months before the start of the working season, their demand calculated on the basis of norms fixed by the Corporation, for scalers for the coming year, on pay bill in the following proforma:
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Pay bill Remarks
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No existing during Increase (-) or decrease (-) in the year number during the coming year Total
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They shall, along with their demand, also submit a list of existing scalers both on pay bill and D.L. in the following proforma :
Name of Division ..................
(a) Sealer on D.L.
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Sl. Name Date Educa- Year of Date Remarks, conduct
No. & of tional passing of performance
Parse- Birth qualifi- the recru- engag- and suitability
ntage cation itment, ement for appointment
physical & medical on D.L. on pay bill
--------------------------------------------------------------------------1 2 3 4 5 6 7
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(b) Sealer on pay bill-
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Sl. Name Date Educa- Year of Date Date of
No. & of tional passing of appoint- Remarks
Parse- Birth qualifi- the recru- engag- ment on
ntage cation tment, ement pay bill
physical on D.L.
& medical
test
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1 2 3 4 5 6 7 8
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The demand shall be scrutinized at the level of the R.M. and he will finally determine the number of the posts to be brought on pay bill in each division. Therefore, a selection committee shall be constituted by the Regional Manager, which will secrutinize the service records including the character roll entries of the eligible D. L. Sealers and make necessary recommendations in this regard to the R.M. Only those D. L. Sealers whose names are approved by the R.M. for being brought on to the pay for a particular Division, shall be appointed as regular scaler by the D.L.M./D.S.M. concerned. A copy of the appointment order will be endorsed to the Regional Manager for record in his office.
(5) The norms of staff as sanctioned by the Corporation are given in Scheduled 'E'.
23. It appears that a scaler at the first instance is to be appointed as a daily labour through prescribed tests. Such D. L. Sealer would be eligible to be brought on pay bill (saler) depending on vacancy existing at any time, after completion of two years period as D.L. Sealer on the basis of seniority subject to rejection of unfit such seniority is to be considered region wise for the purpose whereof the Regional Manager has to maintain a combine list of D. L. Sealers in respect of the whole region and posting on the post of scaler is to be made on the basis of such seniority list after scrutinising the service records and the character roll entries. The principle condition is that in order to be appointed as scaler, one has to pass the requisite test.
24. Chapter 111 deals with recruitment and appointment post of scaler is Group-D post for which the recruitment procedure has been brought in Serial No. 30 of Regulation 16 (iii) which reads follows :
Scaler (i) Not less than 90% by direct recruitment from
(320-460) scalers on D. L. basis of at least of 2 years
(380-492 after experience & who have passed the prescribed
15 years) written, physical & medical test.
Note - Sealers in the first instance shall be
engaged on D.L. on seasonal basis through a
written test, oral test, physical test and
medical test prescribed in the regulations
and shall be paid consolidated wages on
monthly basis.
(ii) Note.-More than 10% by promotion from
other employees of Group-D who are on pay
bill and who have rendered at least 10
years service and have passed High School
Examination with Maths and are not above
46 years of age.
25. The learned Counsel for the petitioners relying on Clause-(I) of Regulation 16(iii)(30) contended that in order to appoint in the post of scaler a test is to be held. The petitioners had passed those tests in 1985 and due to which they were appointed on diverse dates, as scaler. Since they appointed as D. L. Sealer before the test, therefore, the said test held in 1985 was the test for appointment in the post of scaler. Interpreting the said provision, it has been contended by the Counsel for the petitioner that for the purpose of appointment as D. L. Sealer, one has to pass the prescribed written test, oral test, physical test and medical test whereas for the purpose of appointment in the post of scaler from D. L. Sealer, one has to pass written, physical and medical tests, thus, there are different tests in respect of the two appointments. It is contended by the petitioners that they were appointed as D. L. Sealer after the initial test before appointment as D, L. Sealer since the rules require that scalers are to be appointed as D. L. Sealers initially. The second test held in 1985 was for appointment in the post of scaler from the D. I;. Sealer. Thus, the petitioner having been appointed in the post of scaler through such process, it is not open to revert them.
26. Admittedly, the seniority division wise was followed in the case of those petitioners. This fact is not disputed. A plain reading of Regulation 6(4) and Regulation 16(3)(30) if reconciled together shows that there is one test for appointment as scaler. According to Mr. V. K. Singh the petitioners were appointed without test as D. L. Sealer alongwith many other D. L. Sealer. The petitioners had passed only one test that is in 1985. The counsel for the petitioners have not been able to show that any of the petitioners had passed the prescribed test before their appointment as D. L. Sealer. It is by 1985 regulation the test is prescribed. All these petitioners were appointed D. L. Sealer before 1985. By reason of absence of such test, the petitioners became eligible for being considered for the post or scaler on the basis of their seniority only after they had passed the test in 1985. Serial No. 30 of Regulation 16(3) though refers to oral test in the note which is omitted in the first part. A note can never .override the principal Regulation. It is only a note following Regulation 6(4). Clause-(I) of serial No. 30 of Regulation 16(3) prescribed that 90% post of the scaler is to be filled up by direct recruitment from scalers on D.L. basis with two years experience provided such D. L. Sealer had passed the prescribed writen, physical and medical had passed the prescribed writen. physical and medical test. The note prescribes that the scalers are to be appointed in the first instance on DL and seasonal basis through the prescribed test. This reconciles with Regulation 6(4) which provides that the scaler in the first instance shall be engaged on daily labour basis through prescribed test, on completion of two years period on daily labour basis, a D. L. Sealer shall become eligible for being brought on pay bill if there is a vacancy, on the basis of seniority subject to rejection of unfit. Such seniority has to be counted on regional basis. A regional list is to be maintained. Division wise lists are to be forwarded to the Regional Manager who will constitute selection committee for considering such demands after scrutinising the service records including character roll entries on the basis of region wise seniority for being appointed as scaler fulfilling the requisite qualifications mentioned above. Thus, there is no discrepancy in the said provision and it is only one test that has to be undergone. The Regulation having been enforced in 1985. the scalers who were engaged without test on D.L. basis were subjected by the Regulation that was passed by the petitioners. The Regulation prescribes for test, therefore it was necessary to take the test after the Regulation is enforced. Since the Regulation was enforced on 1st April, 1985, it cannot be said that the petitioners had passed the test prescribed in 1985 at the time of their appointment which in these cases were before 1985 as is apparent from the facts disclosed here-in-before. Even if, any of the petitioners had undergone any such test before 1985 such test cannot be said to be the prescribed test within the meaning of 1985 Regulation. Therefore, it cannot be said that the petitioners were posted as scalers through due process. If the petitioners had passed prescribed test in 1985 according to the Regulation, they were liable to be appointed as DL scaler. Even if, they had passed through the prescribed test in 1985, they could be brought on pay bill/scaler or be posted as scaler only on the basis of seniority maintained region wise. Admittedly, each of the petitioners had completed two years as D. L. Sealer before 1985. Therefore, after the passing after the passing of the test, they could be appointed as scaler only on the basis of the seniority maintained region wise after their service records including character rolls were scrutinised by the Selection Committee constituted by the Regional Manager on the basis of the demand forwarded by the Divisional Manager or Divisional Logging Manager according to Regulation 6(4). Therefore, the Divisional Manager or Divisional Logging Manager did not have any jurisdiction to appoint the petitioners on the post of scaler without following Regulation 6(4). Except through the Selection committee constituted by the Regional Manager through the process laid down in Regulation 6(4), there cannot be any valid appointment on the post of scaler. It. is not contended by the petitioners that they were appointed scaler by the Selection Committee constituted under Regulation 6(4) on the basis of Region-wise seniority.
27. Thus, it cannot be said that the appointment of the petitioners on the post of scaler was legal and valid and was through due process. Therefore, the petitioner cannot claim any legal right on the basis of such appointment in the post of scaler on date after the Regulation has come into force. Admittedly, the region wise seniority was not followed. Therefore, the question of fixation of region wise seniority is material for the purpose of removing all anomalies in the appointment of scalers and the disputes of seniority. This has been sought to be done by the Department in compliance of the direction of this Court (Lucknow Bench) in the case of Van Nigam Karmachari Kalyan Sangh (Supra). Thus there is no infirmity in the steps taken by the respondents to refix the seniority in terms of the direction contained in the decision dated 12th July, 1994 in the case of Van Nigam Karmachari Kalyan Sangh (supra), in view of the direction contained therein for compliance thereof within a stipulated period.
28. Thus, in terms of Clause-(x-A), the petitioners who were appointed as scalers were asked to showcase through notice issued in different dates as mentioned above to which an opportunity to reply was given. The petitioners have availed of the said opportunity and had replied. There is nothing in the respective reply which could show that the petitioners could claim seniority other than what is being fixed by the respondents on the basis of their respective appointment as D. L. Sealer in terms, of the direction contained in the said judgment dated 12th July, 1994 There in nothing to show that the said decision is in conflict with the direction issued by this Court in the decision dated 12th July, 1994. The appointment of D. L. Sealer were made without any test prior to coming into force of the Regulation 1985. In none of these cases, the appointments were made after 1985. In as much as. by reason of the Regulation, there would be a distinction in appointment as D.L. Sealer passing through prescribed test after 1985 and appointment of D.L. Sealer without passing the test before 1985. After 1985 Regulation, D.L. scaler could be appointed only after a person passed the prescribed test. The Sealer can be appointed only on the basis of seniority provided they had put in two years service as D. L. Sealer after having passed the prescribed test.
29. The first seniority list prepared after the judgment dated 12th July, 1994 was on the basis of initial entry in whatever Group-D post. But the decision dated 12th July, 1994 subsequently, directed that such seniority list is to be prepared on the basis of appointment as D. L. Sealer though such appointment was made without the prescribed test. The second seniority list therefore, has been prepared in compliance with the said decision on the basis of initial appointment on D. L. Sealer. The petitioner, Ramesh Rao claims that in terms of clause-x-A, his appointment as Field Assistant is also to be counted. But Ramesh Rao having been apointed on 7th September, 1984 at southern region as D..L. Sealer afresh, he cannot claim the benefit of his appointment as Field Assistant in the Eastern Region since the seniority is to be determined regional basis. Since there was nothing to indicate that he was transferred from Eastern region to southern region on administrative reason, the petitioner cannot claim seniority on the basis of his engagement in the eastern region, since his appointment at southern region was a fresh appointment as D. L. Sealer on 7th September, 1984 therefore, 7th September, 1984 would be the date from which his seniority is to be counted on account of his being appointed as D. L. Sealer. Therefore, there is no infirmity with regard to the fixation of seniority on the basis of the respective date of appointment of the petitioners in the Final Seniority List as D.L. Sealer as is envisaged pursuant to the direction contained in Clause-xi of the said judgment.
30. Thus, in such circumstances in compliance with Clause-x-A, it was open to the respondent to revert the petitioners after giving notice. Therefore, there is no infirmity in the order of reversion challenged in this writ petition as mentioned above and there is no infirmity in refixing seniority of D. L. Sealers on the basis of their initial entry as D. L. Sealer prior to 1985. In such circumstances, these writ petitions cannot succeed and fail and are accordingly, dismissed.
31. However, the seniority so fixed can be assailed by the petitioners by means of a representation to the Regional Manager. In case there is any discrepancy in the date of initial entry or mistake in nothing such date as D. L. Sealer before 1st April, 1985. Appointment to the post of scaler can be claimed only on the basis of seniority subject to rejection of unfit in terms of Regulation 6(4) on the basis of consideration by the Selection Committee appointed by the Regional Manager after scrutiny of the service records including character roll entries as provided therein. The petitioners are to be brought in pay bill or in the post of scalers on the basis of their seniority as determined by the seniority list now prepared from the date on which the vacancy came into or comes into existence as the case may be.
32. However, there will be no order as to costs. Petitions dismissed.