Himachal Pradesh High Court
Date Of Decision: 28.09.2023 vs State Of H.P. & Others on 28 September, 2023
Bench: Vivek Singh Thakur, Bipin Chander Negi
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 1745 of 2020.
Date of Decision: 28.09.2023
Chaman Lal & others .....Petitioners.
.
Versus
State of H.P. & others ...Respondents.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1 Yes
For the petitioners: Mr. Ajay Kumar Dhiman, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with
Mr. Ramakant Sharma, Additional
Advocate General.
Vivek Singh Thakur, Judge (oral)
r Petitioners have approached this Court seeking various
reliefs with respect to fixation and protection of pay, granting of Grade
Pay, consequential benefits flowing from fixation/protection of pay and
grant of Grade Pay, arrears thereof and also grant of seniority from
the year 2008 when 50% quota of posts of Tehsil Welfare Officer
became available, however, learned counsel, under instructions,
submits that petitioners are not pressing all reliefs but shall be
satisfied for counting of their contract service for the purpose of
annual increment, seniority, pensionary benefit from the date of their
initial appointment i.e. May, 2010 as also prayed in alternative
because service period counted for granting seniority shall have to be
counted for annual increment as well as pensionary benefit and it
shall redress the grievances of the petitioners.
2. Though petitioners have restricted their claim for
seniority from the date of initial appointment i.e. May, 2010 instead of
Whether reporters of Local Papers may be allowed to see the judgment? Yes .
date of creation of 50% quota for direct recruitment, however,
otherwise also the claim of granting them seniority from the date of
advertisement/ or creation of quota was not permissible under law in
.
view of the authoritative pronouncement of a Bench of three Judges
of the Supreme Court in K. Meghachandra Singh and others vs.
Ningam Siro & others, reported in (2020) 5 SCC 689, wherein it
has been held as under:
" ... ... ... Having regard to the similar provisions, the
Court approved the view that seniority is to be reckoned not
from the date when vacancy arose but from the date on which
the appointment is made to the post. The Court particularly
held that retrospective seniority should not be granted from a
day when an employee is not even borne in the cadre so as
to adversely impact those who were validly appointed in the
meantime."
3. Admittedly, petitioners were appointed as Tehsil Welfare
Officer in the Department of Social Justice and Empowerment to the
Government of H.P, in May, 2010 on contract basis in the Pay Band of
Rs. 10,300-34,800/-+4200 (GP) as per terms and conditions of R & P
Rules applicable to the recruitment for the said post. Services of the
petitioners were regularized on 03.05.2016 after completion of
requisite 05 years continuous contractual service, in accordance with
the instructions issued by the Department of Personnel, Government
of Himachal Pradesh, vide Communication No. PER(AP)C-B-(2)-
2/2015 dated 22.04.2016. On regularization, petitioners were placed
at the minimum of the time scale of the post.
4. It is also undisputed that initial recruitment of the
petitioners against the post of Tehsil Welfare Officer in the year 2010
though on contract basis, but was made following procedure
prescribed under R & P Rules framed by the Department, under the
Proviso to Article 309 of the Constitution of India, and the process
was undertaken by the Himachal Pradesh Public Service
.
Commission, the prescribed recruitment agency.
5. The petitioners were included in the select list on the
basis of merit and were recommended to the Department for
appointment by the Commission, after participating in the process by
way of open competition alongwith other eligible candidates, who had
applied and participated in the said process.
6. Undoubtedly, the contract appointment of the petitioners
was not back door entry, but was made following R & P Rules framed
by the respondents for direct recruitment against the said post. The
appointment of the petitioners on contract basis was a fortuitous
circumstance because the department took a decision not to grant
regular appointment at initial stage.
7. In the aforesaid facts and circumstances, it is evident
that initial appointment of the petitioners on contract basis, followed
by regularization, was made by following Rules in force and was
substantive appointment against the sanctioned post through a
process undertaken by the prescribed agency for recruitment under
the Rules through a competitive process, wherein all eligible
candidates were considered and evaluated.
8. There is no justifiable and plausible reason available on
record for not offering regular appointment at initial stage but to offer
appointment on contract basis, for initial five years, followed by
regularization, despite availability of sanctioned posts and work and
assignment and performance of identical nature of work and duties by
the contract appointees as well as regular appointees. It appears, in
.
order to avoid its liability to pay salary attached to the post and to
deprive the employees from lawful service benefits available to them,
exploitative policy of contract appointment for initial five years has
been/ and is being adopted and practiced. It is not a case where, for
sudden temporary increase in workload, employees were required
and necessitated to be engaged to cope with emergent situation for a
limited period but recruitment was for permanent sanctioned post
created for performance of ever existing work.
9. Omissions and commissions on the part of the State are
arbitrary and such conduct is antithesis the mandates of Article 14 of
the Construction of the India, which does not behove to the State,
being a Model Employer and protector of rights of people. State
cannot and cannot be permitted to act as an exploitative master by
cleverly devising a method under the garb of provisions of R & P
Rules, by providing contractual appointment at initial stage but
depriving service benefits. It is not expected from the State to deprive
the employees from their lawful and just benefits emanating from the
services rendered by them.
10. Recently Principal Division bench of this High Court
referring and relying pronouncements of the Supreme Court and this
Court in Registrar General of India and Another vs. V. Thipa Setty
and Others, (1998) 8 Supreme Court Cases 690; R.K. Mobisana
Singh vs. Kh. Temba Singh and Others, (2008) 1 Supreme Court
Cases 747; Surendra Kumar and Others Vs. Greateer Noida
Industrial Development Authority and Others, (2015) 14,
.
Supreme Court Cases 382; Direct Recruit Class II Engineering
Officer's Association Versus State of Maharashtra and Others,
(1990) 2 Supreme Court Cases 715; State of West Bengal and
Others Versus Aghore Nath Dey and Others, (1993) 3 Supreme
Court Cases 371; Siraj Ahmad Versus State of Uttar Pradesh and
Another, (2020) 19 Supreme Court Cases 480; CWPT No.6785 of
2008, titled as Narender Singh Naik Versus State of Himachal
Pradesh and Others, decided on 14.09.2010; Letters Patent
Appeal No.271 of 2011, titled as State of Himachal Pradesh and
others Versus Narender Singh Naik, decided on 09.04.2013;
Special Leave to Appeal (C) No(s). 34038 of 2012, titled as
Surender Singh Versus State of H.P. Ors has pronounced judgment
dated 03.08.2023 in CWP No. 2004 of 2017, titled as Sh. Taj
Mohammad and others vs. State of H.P. and others alongwtih
connected matter, wherein in the identical circumstances petitioners
therein have been held entitled for seniority from initial date of
appointment on contract basis with all consequential benefits.
11. The claim of petitioners for counting their contract
service is squarely covered by aforesaid judgment in Taj
Mohammad's case and judgments referred and relied therein.
Therefore, the reasons and the grounds assigned for deciding the
aforesaid CWP No. 2004 of 2017 shall be applicable mutatis
mutandis in the present case for all intents and purposes.
12. Accordingly, petitioners are held entitled for counting
.
their services from date of initial appointment on contract basis for the
purpose of seniority and all consequential benefits as initial
appointment of the petitioners on contract basis after following a
procedure prescribed in R & P Rules. In sequel to entitlement for
counting contract service for seniority, petitioners shall also be
13.
r to
entitled for counting the said contract service for the purposes of
granting annual increments and pensionary benefits.
Judgments passed by Supreme Court and various
Benches of this Court, in numerous cases including CWP No.850 of
2010, titled Paras Ram vs. State of HP and others, latest HLJ 2009
(HP) 887; LPA No.36 of 2010, titled Sita Ram vs. State of H.P.,
decided on 15.07.2010; CWP No.4550 of 2010, titled Ravi Kumar
vs. State of HP and another alongwith connected matters, on
16.12.2010; CWP No.5400 of 2014, titled as Veena Devi vs.
Himachal Pradesh State Electricity Board Ltd & another, decided
on 21.11.2014; Special Leave to Appeal CC No(s) 18898 of 2015,
titled as H.P. State Electricity Board Ltd. and another vs. Veena
Devi; CWP No. 8953 of 2013, titled as Joga Singh and others vs.
State of Himachal Pradesh and others and connected matters;
SLP(C)No. 183 of 2016 titled State of H.P. & others vs. Joga Singh
and others, Review Petition (Civil) No. 274 of 2017; CWPOA
No.195 of 2019, titled as Sheela Devi vs. State of H.P. & others,
decided on 26.12.2019; Jagdish Chand vs. State of Himachal
Pradesh & others, decided on 10.01.2020, alongwith connected
matters; SLP (Civil) No. 10399 of 2020, titled State of Himachal
.
Pradesh & another vs. Sheela Devi; SLP(C) Nos.8012-8013 of
2021, in State of Himachal Pradesh vs. Jagdish Chand; CWPOA
No. 5507 of 2020 titled Oma Wati & another vs. State of Himachal
Pradesh and others; and CWPOA No. 5187 of 2020, titled Sunil
Dutt & others vs. State of Himachal Pradesh alongwith connected
matters, decided on 29.08.2003, are also relevant wherein it has
been held that contract service shall be counted for the purpose of
annual increment and pensionary benefits. Petitioners therein, who
were appointed on contract basis by following the Policy adopted by
the State, but dehors the R & P Rules, have been held entitled for
counting of contract service for the purpose of pension and annual
increments, whereas petitioners herein are on better footing than the
petitioners in those petitions, who have been appointed by following
prescribed procedure provided under R & P Rules. Therefore,
petitioners herein are also entitled for counting of their contract
service from their initial date of appointment for the purpose of
pension as well as annual increments alongwith all consequential
benefits.
14. Learned Additional Advocate General has submitted that,
in terms of judgment passed in Jai Dev Gupta vs. State of H.P.
reported in AIR 1998 SCC 2819, actual monetary benefits be
restricted for three years prior to filing of the petition as the petitioners
have approached the Court at belated stage.
15. The above contention of learned Additional Advocate
.
General is not sustainable, as petitioners were regularized in May
2016, but without giving benefit of their contractual service and they
have approached the Court in April, 2017 and, therefore, we do not
find any delay on the part of petitioners approaching the Court for
redressal of their grievances. Therefore, they shall be entitled for all
r to
consequential benefits from the date of their initial appointment.
16. Petition is allowed and disposed of in aforesaid terms
with direction to the respondents to undertake entire exercise and
extend consequential benefits to the petitioners. All benefits including
seniority shall be settled and extended to the petitioners on or before
31st December, 2023 and payment of arrears of monetary benefits
may be disbursed by the respondents in terms of instructions of
Finance Department including instructions dated 07.01.2012 and
17.09.2022.
Pending miscellaneous application(s), if any, shall also
stand disposed of.
(Vivek Singh Thakur)
Judge
(Bipin Chander Negi)
September 28, 2023 (Nisha) Judge
