IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.11547 of 2024 Date of Decision: 23.07.2025 _______________________________________________________ Vivek …….Petitioner Versus State of Himachal Pradesh … Respondent _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr.J.L.Bhardwaj, Senior Advocate with Mr. Sanjay Bhardwaj, Advocate. For the Respondents: Mr. Rajan Kahol & Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocate General. ____________________________________________________ Sandeep Sharma, Judge(oral): Being aggrieved and dissatisfied with order dated 21.12.2023 (Annexure P-19), whereby prayer made on behalf of the petitioner for pay fixation, in terms of provisions contained in HP Civil Services (Revised Pay) Rules, 2022 (in short “Rules”) amended from time to time, came to be rejected, petitioner has approached this Court in the instant proceedings, praying therein for the following main reliefs:- “(i) That a writ in the nature of certiorari may kindly be issued to quash office order dated 21.12.2023 issued by the respondent 1Whether the reporters of the local papers may be allowed to see the judgment? 2 whereby the claim of pay fixation of the petitioner has been rejected. (ii) That a writ in the nature of mandamus may kindly be issued directing the respondent to regularize the services of the petitioner as Clerk w.e.f. 01.10.2021 as ordered in case of other employees who have been selected by the Commission as per the merit list drawn by it and thereafter appointed by the respondent. (iii) That a writ in the nature of mandamus may kindly be issued directing the respondent to pay the petitioner the pay scale of Rs. 30,500/- after two years of regular service w.e.f. 01.10.2023 considering his date of regularization w.e.f. 01.10.2021 instead of 01.04.2022 and further the arrears may kindly be paid to the petitioner along with interest @ 9% per annum from the due date till realization and justice be done.” 2. Precisely, the facts of the case relevant for adjudication of the case are that on 27.06.2018, Himachal Pradesh Staff Selection Commission, Hamirpur (in short “HPSSC”) invited online applications for recruitment inter alia for 156 posts of Clerks (on contract basis) in the respondent-Department against the post Code No. 692, vide Advertisement No. 34-1/2018. Petitioner herein, being fully eligible, applied for the post in question and he was declared successful in the final result declared by the Commission on 23.07.2019 (Annexure P-1). On 27.07.2019, HPSSC sent the recommendations to the respondent along with the merit list drawn by it, wherein name of the petitioner was at serial No. 66. 3 3. Before petitioner could be offered appointment on the basis of recommendation made by HPSSC, one person, with same name as that of the petitioner i.e. Vivek Kumar filed Civil Writ Petition No. 1722 of 2019 in this Court, claiming that he was earlier selected at serial No. 48, however, later on, the petitioner was shown as selected at serial No. 66. Though above named Vivek Kumar prayed for interim relief, thereby staying the appointment of the petitioner, but Division Bench of this Court, vide order dated 05.08.2019 (Annexure P-2), declined such prayer and observed in afore order that anything done by the respondents No. 1 & 2 would be subject to further orders to be passed in that writ petition. Despite there being no stay order granted by Division Bench of this Court, respondent-Commission refused to give appointment to the petitioner on the pretext of pendency of writ petition filed by the person namely Vivek Kumar. Ultimately vide judgment dated 25.10.2019 (Annexure P-7), afore writ petition filed by person namely Vivek Kumar came to be dismissed. While dismissing the writ petition, Division Bench of this Court categorically directed respondent No. 2 in the writ petition to consider the case of the private respondent i.e. petitioner herein and pass appropriate orders, in light of observations, made in the judgment. Most importantly, Division Bench of this Court in afore judgment held that seniority list be drawn by the HPSSC as per the applicable Rules. 4 Pursuant to afore order, respondent, vide office order dated 20.11.2019, offered appointment to the petitioner against the post of Clerk and he joined Secretariat on 27.11.2019. 4. Vide communication dated 28.12.2021 (Annexure P-9), Government of Himachal Pradesh decided that contractual appointees, who had completed two years of service on contract basis as on 30.09.2021, shall be regularized. Though in terms of aforesaid Policy decision, persons, who were lower in merit, came to be regularized, whereas petitioner was denied such benefit on the ground that he had not completed two years of continuous services as on 30.09.2021. However, services of the petitioner were subsequently regularized on 01.04.2022, vide office order dated 01.04.2022 (Annexure P-12). Vide office memorandum dated 03.04.2024 (Annexure P-15), respondent-department circulated provisional seniority list of Clerk(s) of Himachal Pradesh Secretariat as on 31.12.2023, wherein name of the petitioner came to be figured above persons, who were though junior to him, but were regularized ahead of him. 5. Vide notification dated 06.09.2022, Government of Himachal Pradesh Finance (Pay Revision) Department, amended Rule 7 of Himachal Pradesh Civil Services (Revised Pay) Rules, 2022 to the extent that afore Rule shall apply to the employees, who are 5 appointed before 03.01.2022. Though in terms of aforesaid Rules, category of Clerk working in HP Secretariat came to be entitled for pay revision, but such benefit was not extended to the petitioner on the ground that he had not completed two years of regular service on 03.01.2022. 6. Petitioner herein, who though had become eligible for appointment before 20.11.2019, but was actually given appointment on 20.11.2019 for the reasons detailed herein above, approached competent authority by way of representations dated 04.01.2023, 25.04.2023 & 09.11.2023 (Annexures P-16 to P-18), which ultimately came to be rejected, vide communication dated 21.12.2023 (Annexure P-19). In afore communication, petitioner came to be apprised that benefit under Rule 7-A of Rules shall be available to the employees, who are appointed before 03.01.2022, whereas petitioner was given appointment on regular basis w.e.f 01.04.2022. Most importantly, in afore communication, respondents observed that incumbent eligible for benefit of seniority without any depression, if he/she joins within the period of six months, from the date of offer of appointment, shall be eligible for benefit in terms of Rule 7A of Rules. In the afore background, petitioner is compelled to approach this court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove. 6 7. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. J.L.Bhardwaj, learned Senior counsel representing the petitioner, duly assisted by Mr. Sanjay Bhardwaj, Advocate, is that since petitioner had become eligible to be offered appointment in year 2019 itself, as per recommendation dated 27.07.2019 made by HPSSC and his appointment was delayed on account of litigation initiated at the behest of person namely Vivek Kumar and there was no stay, if any, granted in afore proceedings, respondent ought to have granted appointment to the petitioner from the date his juniors were offered appointment, pursuant to recommendation made by the commission dated 27.07.2019. 8. While referring to judgment passed by Division Bench of this Court in CWP No. 1722 of 2019 filed at the behest of person namely Vivek Kumar, Mr. J.L.Bhardwaj, learned Senior Counsel for the petitioner, submitted that in the month of October, 2019, Division Bench of this Court had directed respondent No. 2 to consider the case of the petitioner for appointment, however, despite afore direction, petitioner was only offered appointment on 20.11.2019, and was subsequently denied regularization in terms of Policy decision taken by the Government of Himachal Pradesh on the ground that he had not completed two years of service from the date of his initial 7 appointment. He submitted that since writ petition filed by Vivek Kumar was rejected and recommendation made by HPSSC of the petitioner against the post of Clerk was held to be valid, respondent in all eventuality ought to have granted him appointment from the date his juniors were offered appointment. If it is so, petitioner was also entitled to be regularized from the same date, when his juniors were regularized, vide order dated 30.12.2021 (Annexure P-10). He further submitted that though pursuant to order passed by Division Bench of this Court, petitioner was given seniority above persons juniors to him in the merit list and strictly as per recommendation made by the HPSSC, but yet he was not considered for regularization along with persons junior to him on flimsy ground that he has not completed two years of service from the date of his appointment as on 30.09.2021. 9. To the contrary, Mr. Ravi Chauhan, learned Deputy Advocate General, while justifying the impugned action of the respondent, contended that though name of the petitioner was recommended by HPSSC on 27.07.2019 along with other selected candidates, but fact remains that he could only join service, pursuant to the offer of appointment dated 20.11.2019. If it is so, no illegality can be said to have been committed by the respondent. He further submitted that otherwise also, there was no fault, if any, of the department, rather appointment of the petitioner got delayed on 8 account of pendency of litigation initiated at the behest of person namely Vivek Kumar. Lastly, Mr. Ravi Chauhan, submitted that as per Rule 7-A of Rules, benefit of pay revision could only be given to the employees, who were appointed before 03.01.2022 on regular basis. 10. Having heard learned counsel for the parties and perused material available on record, this Court finds that there is no dispute that HPSSC, vide communication dated 27.07.2019, had recommended the petitioner for appointment to the post of Clerk in HP Secretariat. It is also not in dispute that though there was no hitch, if any, for the respondents to issue appointment letter to the petitioner along with other similarly situated persons, pursuant to recommendation dated 27.07.2019, but yet taking note of pendency of litigation initiated at the behest of person namely Vivek Kumar, petitioner herein was not given appointment on 04.09.2019 as was given to other similarly situated persons, despite the fact that there was no stay order granted by Division Bench of this court in the writ petition filed by above named Vivek Kumar. It is also not in dispute that ultimately writ petition filed by Vivek Kumar was dismissed and Division Bench of this Court, while directing the respondent to consider the case of the petitioner for appointment, also directed him to assign appropriate seniority to the petitioner. Though respondent assigned seniority to the petitioner, thereby showing him senior to 9 persons, who were junior to him in the merit list, but interestingly denied him benefit of regularization along with other persons, who were recommended along with him, vide recommendation dated 27.07.2019 on the pretext that he had not completed two years regular service as on 30.09.2021. Since it is not in dispute that petitioner stood recommended along with all other selected candidates, vide recommendation dated 27.07.2019 and thereafter writ petition filed by person namely Vivek Kumar was dismissed, petitioner ought to have been given appointment from the date, when persons selected along with him were given appointment, but yet he was given appointment from the prospective date i.e. 20.11.2019. True it is that seniority of a person is counted from date of his joining, but in the instant case, petitioner was prevented from joining service along with other persons on 04.09.2019 for no fault of him and as such, petitioner herein could not have been denied benefit of regularization w.e.f 01.10.2021, when other similarly situated persons were regularized. 11. Leaving everything aside, since it is not in dispute that respondent, vide communication dated 03.04.2024, assigned seniority to the petitioner over and above persons, who though were lower in merit list but were regularized ahead of him, benefit of pay revision could not have been denied to him. Reliance is placed upon 10 Rule 7-A of Rules, which provides that this Rule would apply to employees, who are appointed before 03.01.2022. Had person namely Vivek Kumar not filed CWP No.1722 of 2019, laying therein challenge to selection of the petitioner, coupled with the fact that such petition was ultimately dismissed, petitioner would have become eligible for regularization prior to 03.01.2022, but for no fault of him, he was not given appointment prior to afore date. Though it has been provided under Rule 7-A of Rules that such rule shall apply to the employees, who are appointed before 03.01.2022, but probably true import of this rule is that person regularized before afore date shall be considered for benefit of pay revision in terms of Pay Revision Rules. 12. At this stage, it would be apt to take note of judgment passed by Coordinate Bench of this Court in CWP No. 1638 of 2024, titled as Mohit Sharma & Anr. Vs. State of Himachal Pradesh, wherein services of the petitioner in that case were regularized on 19.01.2022 i.e. beyond the cut-off date of 03.01.2022 mentioned in notification dated 06.09.2022, however, this fact could not be held against them for denying the applicability of Rule 7-A, especially when it is not in dispute that respondent had already taken a decision on 28.12.2021 to regularize the services of all those contractual appointees, who had completed two years of contractual service on 30.09.2021. In afore judgment, Coordinate Bench of this Court has 11 held that even if Rule 7-A of Revised Pay Rules, is to be read independently of the Revised Pay Rules, 2022, which seems to be the misplaced contention of the State, then also the petitioner is entitled to the benefit of Rule 7(A). Rule 7(A) does not place any embargo upon grant of benefits under it to the contractual employees, more so, upon their completing two years of regular service. The words used in Rule 7(A) pertaining to its applicability are “employees who are appointed before 03.01.2022,” without making any distinction between contractual or regular appointment. Petitioner herein though was required to be appointed on 04.09.2019 along with other persons, whose names were recommended by the HPSSC, vide communication dated 27.07.2019, but even if date of his appointment is taken to be 20.11.2019, Revised Pay Rules, 2022 become applicable upon him, pursuant to his regularization done on 01.04.2022. Relevant paras of the afore judgment read as under: “The Revised Pay Rules, 2022, were notified on 03.01.2022. These Rules restrict their applicability to employees appointed on regular basis and are not applicable to persons appointed on contract. Relevant Rule 2 of the Revised Pay Rules, 2022, reads as under:- “2. Appointment. (1) Save as otherwise expressly provided by or under these rules, they shall apply to all the persons appointed on regular basis to the services and posts in connection with the affairs of the State of 12 Himachal Pradesh and whose pay is debited to the Consolidated Fund of State of Himachal Pradesh. (2) They shall not apply to the; - (a) members of the All India Services of Himachal Pradesh cadre; (b) judicial officers and employees of Subordinate Judiciary in the State whose pay scales are regulated by separate enactment/ order; (c) employees whose scales of pay have been determined on the recommendations of the University Grants Commission; (d) persons not in the whole-time employment of the Government of Himachal Pradesh; (e) persons paid out of contingencies and daily wagers; (f) work-charged employees; (g) persons employed on contract basis; and (h) persons specifically excluded wholly or in part from the operation of these rules.” 4(v). Even if Rule 7(A) of the Revised Pay Rules, 2022, is to be read independently of the Revised Pay Rules, 2022, which seems to be the misplaced contention of the State, then also the petitioners are entitled to the benefit of Rule 7(A). As in such situation also, it has to be held that Rule 7(A) does not place any embargo upon flow of benefits under it to the contractual employees, more so, upon their completing two years of regular service. The words used in Rule 7(A) pertaining to its applicability are “employees who are appointed before 03.01.2022,” without making any distinction between contractual or regular appointment. Petitioners are 13 appointees prior to 03.01.2022. Revised Pay Rules, 2022, therefore, become applicable upon regularization of contractual appointees and higher stage of pay provided under Rule 7(A) is to be released upon completing requisite number of years of regular service. 4(vi). It may also be in place to note the State Cabinet’s decision for applying Rule 7(A) to the contractual employees upon completion of requisite numbers of years of regular service, which is as under:- “The cabinet approved that the contractual appointees regularized shall be eligible to get the benefit of revised pay rules, 2022 as provided vide sub rule (7A)-Fixation of pay of certain categories notified vide FD notification No. FIN (PR)- B(7)-1/2021-loose dated 06.09.2022 on completion of their two years of regular service.” As per above decision also, contractual employees upon regularization shall be entitled to benefits of Revised Pay Rules, 2022, including Rule 7(A). 4(vii). Also, regularization of services of the petitioners on 19.01.2022, i.e. beyond the cut off date 03.01.2022 mentioned in the notification dated 06.09.2022, cannot be held against them for denying the applicability of Rule 7(A) to them. The respondents had already taken a decision on 28.12.2021 to regularize the services of all those contractual appointees, who had completed two years of contractual service as on 30.09.2021. Regularization though had to be with prospective effect, but what had to be followed was a ministerial order. It is not in dispute that petitioners had completed two years of contractual service much prior to 30.09.2021. Petitioners completed two years of continuous contractual service on 08.02.2021 and 14.11.2020, respectively. Just because their regularization order was issued on 19.01.2022, i.e. beyond 03.01.2022, would not mean that only for that reason they are 14 to be denied the benefit of higher stage of pay under Rule 7(A) notified on 06.09.2022. It is an admitted position that petitioners upon their regularization on 19.01.2022 have already been granted the higher stage of pay of Rs.20,200/- which is admissible to employees (Clerks) upon regular appointment under Rule 7(A) of the Revised Pay Rules, 2022. That being so, there is absolutely no good reason for denying them higher stage of pay of Rs.30,500/- under Rule 7(A) upon completing two years of regular service as Clerks. 13. Leaving everything aside, since it is not in dispute that persons, who were recommended along with the petitioner, vide recommendation dated 27.07.2019, stand granted benefit of pay revision in terms of Rules, coupled with the fact that petitioner ranks higher in seniority list circulated by the department, than persons, who already have received benefit, in terms of Rules, benefit as being claimed by the petitioner in the petition at hand cannot be denied to him. There is another aspect of the matter that persons junior to the petitioner cannot draw higher salary, but now on account of denial of benefit of pay revision in terms of Rules, persons junior to the petitioner are in receipt of more salary to the petitioner, which is impermissible in terms of FR22. 14. Consequently, in view of the above, this Court finds merit in the present petition and accordingly, the same is allowed. Office Order dated 21.12.2023, thereby denying benefit of Pay Fixation in 15 terms of Rules, is quashed and set aside. Respondent is directed to regularize the services of the petitioner w.e.f. 01.10.2021, in the same manner as was done in the case of other employees, whose names were recommended along with the petitioner and who were junior to him. Since benefit of higher pay already stands granted to persons junior to the petitioner, in terms of pay revision, petitioner shall also be given similar benefit w.e.f 01.10.2021, considering his date of regularization w.e.f 01.10.2021 instead of 01.04.2022 with all consequential benefits. Arrears, on account of pay fixation from the date, as indicated above, shall be paid expeditiously, preferably within four months, failing which petitioner would be entitled to interest at the rate of 6% per annum from the date such amount fell due. Pending applications, if any, stand disposed of. p (Sandeep Sharma), Judge July 23, 2025 (Sunil)