- (1.) THE learned counsel for respondents has filed counter-affidavit 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.
(2.) BY means of the present writ petition the petitioner has sought a writ of mandamus commanding the respondents not to treat the service between 3-7-1983 to 12-6-1983 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 re cruitment and service condition of the em ployees 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 sea sonal 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 ap pointment 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 (an-nexure-1) shows that the appointment is tem porary 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 certifi cate by the Chief Medical Officer. Thereafter vide annexure-2 dated 5th July, 1983 the pe titioner 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 let ter dated 18-7-1983 to the concerned author ity to know the reason why he has been re verted. Back and in response thereof, the pe titioner was informed vide arjnexure-3 dated 26th July, 1983 that he did not fulfill the mini mum required standard of chest size and chest expansion size i.e 72 cm. to 77 cm. Learned counsel for the petitioner fur ther argued that vide annexure-4 dated 13th July, 1986,' the petitioner was reappointed as pay bill sealer and the recital in the order in dicates that he was reappointed on account of his achieving the minimum required stan dard chest size.
(3.) IT is the contention of the learned coun sel for petitioner that the appointment of the petitioner on the post of pay bill sealer in the year 1983 vide letter of appointment dated 11-1-1983 should be treated to be the date of substantive appointment of the petitioner on the said post and thereafter the re- appointment vide order dated 13th July, 1986 should be treated to be in continuation of the appoint ment 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 peti tioner 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 deter mined from the initial date of his appointment on the post of pay bill sealer that is 11-1-1983 and therefore, placement of petitioner at SI. No. 100 in the seniority list annexed as An-nexure-5 is arbitrary and erroneous being patently illegal. The petitioner in his conten tion has relied upon the Rules-6 Sub- clause-4 (b) to demonstrate the induction into ser vice. The aforesaid provision is quoted herein below. "Sealers in the first instance shall be en gaged 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 ex isting at any time, only after completion of at least 2 years period on daily labour, on the basis of seniority subject to rejection of un fit. Proper record of service including char acter 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 con trolled by the concerned Regional Manager for all the Logging and Sales Divisions un der his charge. For this purpose, the Regional Manager, shall maintain in his office a com bined 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 ini tially appointed as sealer daily labour on 1-10-1979 and has continued in the same cat egory 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 (Annexure-4 to the writ petition) and therefore, he should be treated in continuous service from 11-1-1983 on the post of pay bill sealer. For this pur pose the petitioner has relied on Rule 11(1) which is quoted below. No person shall be appointed to a post un less 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 examina tion 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, dur ing 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 un fit, his services may be terminated.;