Satish Kumar Banyal & Others vs State Of H.P. & Others
2024 Latest Caselaw 14802 HP

Himachal Pradesh High Court

Satish Kumar Banyal & Others vs State Of H.P. & Others on 3 October, 2024

Neutral Citation No. ( 2024:HHC:9680 )

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

LPA No. 314 of 2024 Date of decision: 03.10.2024

Satish Kumar Banyal & others ....Appellants.

                                      Versus

State of H.P. & others                                                    ....Respondents.

Coram:

The Hon'ble Mr. Justice Rajiv Shakdher, Chief Justice. The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?

----------------------------------------------------------------------------------- For the appellants: Mr. Adarsh K. Vashista, Advocate.

For the respondents:          Mr. Arsh Rattan, DAG.


Rajiv Shakdher Chief Justice (oral):

               CMP(M) 1458 of 2024

1. This is an application seeking condonation of delay in filing the

appeal.

2. According to the counsel for the applicant/appellant, there is

a delay of fifty (50) days.

3. Mr. Arsh Rattan, learned Deputy Advocate General, who

appears for the non-applicants/respondents, says that he would have no

objection if the application is allowed.

3.1 Accordingly, the delay is condoned.

4. The application is disposed of.

5. This appeal is preferred against the judgment and order dated

13.05.2024 passed by the learned Single Judge.

5.1 Via the impugned judgment and order, the learned Single Judge

has allowed the writ petition and directed the respondents to take into

account the service rendered by the petitioners as contractual employees,

[which was followed by regularization], to determine 'Qualifying Service'

for the purposes of pensionary benefits.

6. The learned Single Judge, however, declined to extend the

relief of annual increments for services rendered on a contractual basis.

7. Apparently, this view was taken by the learned Single Judge

based on his appreciation of the judgment rendered by the Supreme Court in

State of H.P. v. Sheela Devi,2023 SCC OnLine SC 1272.

8. According to learned counsel for the appellants, the issue

concerning the grant of annual increments for service rendered on

a contractual basis is covered by several judgments. In support of his

submission, reliance is placed on the following judgments:

i) Sita Ram vs. State of H.P. & others, 2010:HHC:4886-

DB.

             ii)   Sheela Devi vs. State            of    H.P.    &    others,
                   2019:HHC:11152-DB.

iii) Jagdish Chand vs. State of H.P. & others alongwith connected matters, 2020:HHC:768-DB.

iv) Oma Wati & another vs. State of H.P. & others, 2023:HHCL9854.

v) Sunil Dutt & others vs. State of H.P. & others alongwith connected matters, 2023:HHC:9854

vi) Ram Chand & others vs. State of H.P. & others, 2024:HHC:8877.

9. We note that counsel for the respondents says that the prayer

made in the writ petition stands addressed as service rendered by the

appellants on a contractual basis before regularization was being taken into

account to determine 'Qualifying Service' for the purposes of pension under

the CCS (Pension) Rules, 1972. In other words, the argument was that there

was no mention of the prayer for grant of annual increments for service

rendered on a contract basis.

10. Although that appears to be the situation if one were to read

prayer clause no. (i) of the writ petition, the issue has been squarely dealt

with by the learned Single Judge upon summarization in the operative

portion of the impugned judgment while denying the relief concerning

annual increments. For convenience, the operative reasoning of the learned

Single Judge on this issue is extracted hereafter:

"As far as the prayer of some of the petitioners for grant of annual increments for the services rendered on contract basis is concerned, this Court is rejecting this prayer in view of the judgment passed by Hon'ble Supreme Court in State of Himachal Pradesh and another vs. Sheela Devi, SLP (c) No. 10399 of 2020, wherein in para-9, Hon'ble Supreme Court has been pleased to categorically hold that "it is only for the

purposes of pension that the past service as a contractual employee is to be taken into account.""

[Emphasis is ours]

10.1 Therefore the issue clearly arose for consideration before the

learned Single Judge. The question then, which arises is: where does one

locate the learned Single Judge's decision on the aspect concerning annual

increment?

11. In our view, if an issue arises for consideration on which parties

have had their say in a writ action that contains a residuary prayer such as in

the instant petition, the relief granted/denied can be located therein. For

convenience, the residuary prayer contained in the writ action is extracted

hereafter:

"Any other relief as may be deemed just and proper in the facts and circumstances of the case may kindly be granted in favour of the petitioners and against the respondents under the law"

12. That being the situation, we are inclined to allow the prayer as

the issue is squarely covered by the several judgments rendered by this

Court,which remain undisturbed. For convenience, the relevant observations

made in Sita Ram v. State of HP and Ors.,2010-HHC-4886-DB,are

extracted hereafter:

"2. According to the learned counsel for the petitioner-appellant, the petitioner having been recruited through the same recruitment process, he is entitled to have seniority also in respect of the period of ad hoc service. We are afraid that contention cannot be appreciated. It is not in dispute that initial recruitment was only for ad hoc service. However, this court in Paras Ram's case had laid down the law that if ad hoc service is followed by regular service in the same post, the said service could be counted for the purpose of increments. It is also settled principle of law that any service that is counted for the purpose of increment, will count for pension also. To that extent the

appellant is justified in making submission that period may be treated as qualifying service for the purpose of pension also. However, so far as the seniority is concerned, the basic norms of seniority will be counted on the date of appointment in regular service, qua those who are already in regular service as on that date. If the claim of the petitioner-appellant is to be accepted, it will unsettle the settled seniority of those regular teachers. It may also not be out of context to note that none of affected teachers is before us. Be that as it may. Since the petitioner-appellant under law is entitled only for counting the ad hoc service, followed by regular service for the purpose of increments and pension, there is no merit in the appeal and the same is dismissed subject to the above modification that the period that is counted for the purpose of increment, will count for pension also."

[Emphasis is ours]

12.1 A similar view was also taken by the division bench in Ram

Chand and others v. State of H.P. and others, 2024:HHC:8877. For

convenience, the relevant paragraph of the judgment is extracted hereafter:

"32. Contract service of the petitioners was followed by regular service, without interruption, on the same post. Therefore, they are definitely entitled for counting their contract service for the purpose of annual increments as well as pensionary benefits."

[Emphasis is ours]

13. Therefore, the petitioners being entitled to the grant of benefit

of the contractual service, shall have it taken into consideration for grant of

annual increment.

14. The appeal is allowed to that extent.

(Rajiv Shakdher) Chief Justice.

(Satyen Vaidya) Judge 3rd October, 2024 (kck)