Himachal Pradesh High Court
Lalit Katoch vs State Of H.P. And Others on 30 May, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2025:HHC:17171-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.7287 of 2022.
Judgment Reserved on: 27.05.2025.
Date of decision: 30.05.2025.
Lalit Katoch .....Petitioner.
Versus
State of H.P. and others ....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Dilip Sharma, Senior Advocate
with Mr. Manish Sharma,
Advocate.
For the Respondents : Mr.Anup Rattan, Advocate General
with Mr. I.N. Mehta, Senior
Additional Advocate General, Mr.
Ramakant Sharma, Mr. Navlesh
Verma, Ms. Sharmila Patial, Mr.
Sushant Keprate, Additional
Advocate Generals, Mr. J.S.
Guleria and Mr. Raj Negi, Deputy
Advocate Generals, for
respondent Nos. 1 and 2.
Mr.H.S.Rangra, Advocate, for
respondent No.3.
Ms. Archana Dutt, Advocate, for
respondent No.5.
Names of petitioner No.2 and
respondent No.4, deleted vide
order dated 07.05.2025.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
Neutral Citation No. ( 2025:HHC:17171-DB )
Tarlok Singh Chauhan, Judge
The instant petition has been filed for grant of the
following substantive reliefs:
"(i) That impugned decision reflected in Annexure P-3
dated 17.11.2021, Annexure P-4 dated 5.9.2022 and
Annexure P-9 dated 24.9.2022 and/or in any other
order/instructions/letter denying option to the
petitioners to opt for Municipal Corporation cadre of
JE only on the ground that on the date of upgradation
of corporations on 28.10.2020 they were posted in
different Municipal Councils, may be quashed and set
aside.
(i-a) That the impugned provisions of Section 423(1) of
the HP Municipal Corporation Act, 1994, envisaging
that any officer/employee serving in a Municipality
before its upgradation to the status of the Municipal
Corporation would be deemed to be transferred to
the Corporation, may be struck down/read down, so
that the respondents seek option from the holders of
posts in State Level Services cadre under the HP
Municipal Services Act, 1994, to move to newly
upgraded/created Municipal Corporation.
(ii) That the respondent department may be directed to
permit the petitioners to opt for absorption in
Municipal Corporation Mandi and Solan cadre of JEs
respectively in view of the fact that before
upgradation of the said Corporations, there was a
joint State Level Municipal Services cadre of JEs and
consequently they may be held entitled to all
consequential benefits;
(iii) That if during the pendency of writ petition,
respondent No.5 or any other Junior Engineer is
Neutral Citation No. ( 2025:HHC:17171-DB )
promoted to the post of Assistant Engineer only
because he was working in Municipal Committee
Mandi/Solan on the date of upgradation of these
Municipal Councils, in that event such promotion of
respondent No.5 or any other Junior Engineer to the
post of Assistant Engineer in Municipal Corporation
cadre may kindly be quashed and set aside and the
petitioners may be held entitled to be considered for
promotion from the date of promotion of respondent
No.5 or any other such JE, with all consequential
benefits;
(iii-a) That the promotion of respondent No.5 as Assistant
Engineer vide Annexure P-11 dated 25.04.2023
during the pendency of writ petition may kindly be
quashed and set aside with all consequential reliefs
including direction to the respondents to consider the
petitioner No.1 for promotion as Assistant Engineer
from the date respondent No.5 was so promoted,
with all consequential benefits."
2. The names of petitioner No.2 and respondent No.4 i.e.
Municipal Corporation, Solan, against whom, petitioner No.2 had a
grievance, were ordered to be deleted from the array of the
respondents vide order dated 07.05.2025.
3. The undisputed facts of the case are that the petitioner
was initially appointed as Junior Engineer (Civil) in Municipal
Council, Mandi, on daily wage basis. His services came to be
regularized on the said post with effect from 05.06.2000 and he
continued to work as such in Municipal Council, Mandi, till October,
2019. It was vide order dated 31.10.2019 that the petitioner came to
Neutral Citation No. ( 2025:HHC:17171-DB )
be transferred from Municipal Council, Mandi to Municipal Council,
Nalagarh. The Municipal Council Mandi vide Notification dated
28.10.2020 was declared to be a Corporation and the employees of
the erstwhile Municipal Council, Mandi, who happened to be there,
were absorbed in the respective Municipal Corporations,
irrespective of their positions in the seniority list vis-a-vis the other
employees, who had been transferred to other Municipal Councils
within the State in the meanwhile before the upgradation. Vide
order dated 21.08.2021, the petitioner was transferred and deployed
as JE in Municipal Corporation, Palampur. The petitioner had been
making representations to absorb him in Municipal Corporation,
Mandi, being former JE of Municipal Corporation, Mandi and even
got issued a legal notice. Since, private respondent No.5, who was
junior to the petitioner, has been absorbed in the Municipal
Corporation, Mandi, only on account of the fact that he had been
working there on the date of upgradation, the petitioner has filed the
instant petition for grant of the reliefs as quoted above.
4. The respondents have filed their reply(ies) and opposed
the petition solely by placing reliance on the provisions contained in
Section 423(1) of the Himachal Pradesh Municipal Corporation Act,
1994, (for short 'Act'), which read as under:
"423. Provisions regarding officers and employees.- (1)
When any municipality including area comprising rural area
or a part thereof, if any, is declared and constituted a
Corporation under sections 3 and 4 of this Act, the entire
officers and employees serving in a municipality including
Neutral Citation No. ( 2025:HHC:17171-DB )
area comprising rural area or a part thereof, if any, on a
post in relation to which the Corporation is constituted, shall,
on the declaration and constitution of a Corporation, be
deemed to be transferred to the Corporation on the existing
terms of service and integrated into the corresponding
municipal service.
(2) The Corporation may recruit additional staff where
necessary subject to the conditions as may be laid down by
the Government.
(3) In making appointment to any post referred to in this
section, the appointing authority shall follow the instructions
issued by the Government from time to time in relation to
reservation of appointment or post for Scheduled Castes,
Scheduled Tribes, Backward Classes and other category of
persons."
5. It is submitted by Shri Dilip Sharma, Senior Advocate,
assisted by Shri Manish Sharma, Advocate that the petitioner
became member of the JE Cadre of State Level Municipal Services
and was working as Junior Engineer in the respective Municipal
Councils and only on account of fortuitous circumstances of a
person having joined and working in a particular establishment
should not be the sole criteria on which his services could have been
taken over by the Corporation without affording an opportunity to
similarly situated persons specially the Seniors to exercise their
options to serve in the Corporation.
6. We have heard the learned counsel for the parties and
have gone through the material placed on record.
7. It is not in dispute that the petitioner prior to the services
of the private respondent being taken over under Section 423 of the
Act were in the cadre of JEs in the State Level Services and it was
Neutral Citation No. ( 2025:HHC:17171-DB )
only in fortuitous circumstance that the private respondent, who
happened to be similarly situated like the petitioner, came to be
posted in the Municipal Council, Mandi, on the date of the issuance
of the Notification deemed to be transferred to the Corporation on
the existing terms of service and integrated into the corresponding
municipal service.
8. In our considered view, the fortuitous circumstance,
merely because, respondent No.5 was working as JE and he
belonged to the State Level Services, could not be deemed to have
been transferred to the Corporation solely on this ground alone.
9. By now, it is well settled that Article 14 of the
Constitution forbids class legislation but does not forbid reasonable
classification.
10. The Hon'ble Supreme Court in Union of India & Ors.
vs. N. Rathnam & Sons (2015) 10 SCC 681 specifically held that if
two persons or two sets of persons are similarly situated/placed,
they have to be treated equally. In the aforesaid judgment, the
Hon'ble Supreme Court has held that principle of equality does not
mean that every law must have universal application for all persons,
who are not by nature, attainment or circumstances in the same
position. It would mean that the State has the power to classify
persons for legitimate purposes. Though, in the aforesaid judgment,
the Hon'ble Supreme Court has held that legislature is competent to
Neutral Citation No. ( 2025:HHC:17171-DB )
exercise its discretion and make classification and every
classification is in some degree likely to produce some inequality but
mere production of inequality is not enough. Article 14 would be
treated as violated only when equal protection is denied even when
two persons belong to same class/category. It was further held that
the person challenging the act of the State as violative of Article 14
has to show that there is no reasonable basis for the differentiation
between two classes created by the State. Article 14 prohibits class
legislation but does not forbid reasonable classification.
11. In Budhan Chaudhary & Ors. vs. State of Bihar, AIR
1955 SC 191, the Hon'ble Supreme Court has held that by now it is
well settled that Article 14 forbids class legislation but not reasonable
classification for the purposes of legislation. It has been held in this
judgment that to pass the test of permissible classification, two
conditions must be fulfilled, namely (i) that the classification must be
founded on an intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the group and
(ii) that differentia must have a rational relation to the object sought
to be achieved by the statute in question. It was also held that the
classification may be founded on different basis; namely
geographical, or according to objects or occupations or the like.
What is necessary is that there must be a nexus between the basis
of classification and the object of the Act under consideration.
Neutral Citation No. ( 2025:HHC:17171-DB )
12. The Hon'ble Supreme Court in S. Seshachalam and
Ors. vs. Chairman, Bar Council of T.N. & Ors. (2014) 16 SCC 72,
has categorically held that Article 14 states that "the State shall not
deny to any person equality before the law of the equal protection
of the laws within the territory of India.". Article 14 forbids class
legislation but not reasonable classification. The classification
however must not be arbitrary, artificial or evasive but must be
based on some real and substantial bearing, a just and reasonable
relation to the object sought to be achieved by the legislation.
13. Article 14 applies where equals are treated differently
without any reasonable basis. Article 14 does not apply where
equals and unequals are treated differently. Class legislation is that
which makes an improper discrimination by conferring particular
privileges upon a class of persons arbitrarily selected from a large
number of persons all of whom stand in the same relation to the
privilege granted and between those on whom the privilege is
conferred and the persons not so favoured, no reasonable
distinction or substantial difference can be found justifying the
inclusion of one and exclusion of the other from such privilege.
14. There is no intelligible differentia related to the object
and purpose of Section 423 of the Act which would justify the
deemed clause in this section, rather, the section is clearly
Neutral Citation No. ( 2025:HHC:17171-DB )
discriminatory as it cannot be justified on any intelligible differentia
and does not seek to achieve any purpose whatsoever.
15. We are, therefore, of the opinion that the provision of
Section 423 of the Act is violative of Article 14 of the Constitution of
India insofar as it provides for the entire officers and employees
serving in a Municipality to be deemed to be transferred to the
Corporation. This essentially should not have been applied and was
required to be restricted to those of the employees, who were
appointed by the Corporation and not posted under any fortuitous
circumstance. Making such provisions applicable to all officers and
employees solely on the ground that happened to be serving at the
relevant time cannot be countenanced. The least that was not only
expected but required of the official-respondents was to have called
for the options from all the similarly situated JEs, who were working
at the State Cadre and then should have appointed any one of them
in accordance with the criteria as the official-respondents could have
been legally advised. The services of a person cannot be deemed
to have been taken over only because one happens to be there at
the right place at the right time. Such service is alien in Service Law
and cannot be countenanced.
16. In view of the above, we find merit in this petition and
accordingly the same is allowed. The impugned decisions reflected
in Annexure P-3 dated 17.11.2021, Annexure P-4 dated 05.09.2022
Neutral Citation No. ( 2025:HHC:17171-DB )
and Annexure P-9 dated 24.09.2022, are set aside. Consequently,
the Office Order dated 25.04.2023 (Annexure P-11), whereby
respondent No.5 has been promoted, is also set aside.
17. The official-respondents are directed to invite the
options from all the JEs, who held the post of State Level Service
Cadre under the H.P. Municipal Corporation Act, 1994, as on
31.10.2019 and thereafter appoint the senior most JE still serving
and willing in the State Level Service Cadre in the Municipal
Corporation, Mandi, which appointment will be along with notional
consequential benefits, in the case where the person is other than
the present petitioner. However, in case, the petitioner is appointed,
his appointment shall be alongwith all consequential benefits
including seniority etc. However, monetary benefits will be available
to the petitioner only from the date of filing of the instant petition.
18. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
Judge
30th May, 2025.
(krt)
