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. 1Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 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 3 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 4 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 5 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. 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 6 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 7 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. 8 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 9 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 10 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)