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Himachal Pradesh High Court · body

2025 DAILYLAW 4018 (HP)

Bhago Devi v. State of H. P.

2025-12-11

Ranjan Sharma

body2025
JUDGMENT : Ranjan Sharma, J. Petitioner, Bhago Devi, presently a Pump Attendant, in Jal Shakti Vibhag of the Respondents State, has come up before this Court, seeking the following reliefs :- “(i) That the respondents may kindly be directed to bring the service of the petitioner on contractual establishment against the post of pump attendant immediately on completion of 12 years services as Water Guard w.e.f 01.01.2019 instead of 23.09.2022 and further the respondents may kindly be directed to give regularization to the petitioner immediately after completion of 3 years of contractual services i.e. w.e.f. 01.01.2022 instead of 23.12.2022 in the time scale of pay from due date along with all consequential benefits, including seniority, arrears and monetary benefits, in the interest of justice and fair play. (ii) That the respondents may kindly be directed to grant relaxation in educational qualification to the petitioner as has been done in the case of other similarly situated persons.” FACTUAL MATRIX: 2. Case as set up by Learned Counsel is that petitioner was appointed as Water Guard on Part Time basis in Gram Panchayat, Amralu Gummu, Development Block, Mandi in December 2006 and though the nomenclature was part time, but the petitioner in fact, worked as whole time with Gram Panchayat and has rendered continuous service with minimum of 240 days service there. It is averred that on 17.07.2019, the State Government took a decision that Water Guards working under Assured Rural Water Supply Scheme (ARWSP), now National Rural Drinking Programme (NRDWP) were to be appointed /deployed against vacant posts of Pump Attendants in accordance with the Recruitment and Promotion Rules, on contract basis, in I&PH (now Jal Shakti Vibhag) of the State. It is averred that pursuant to decision dated 17.07.2019, the Engineer-in-Chief (JSV) issued a communication on 19.06.2020, for converting 1376 posts of various categories in the respondent department, as Pump Attendants [Class-IV], so as to fill these posts from Water Guards [Jal Rakshaks] on completion of 12 years’ service as on 31.12.2018 on contract basis. 2(i). It is averred that pursuant to decision dated 17.07.2019, the Engineer-in-Chief (JSV) issued a communication on 19.06.2020, for converting 1376 posts of various categories in the respondent department, as Pump Attendants [Class-IV], so as to fill these posts from Water Guards [Jal Rakshaks] on completion of 12 years’ service as on 31.12.2018 on contract basis. 2(i). It is averred that on completion of 12 years of continuous service as Water Guard as on 31.12.2018 in respective Gram Panchayats, though Respondents-State Authorities were bound to consider their cases for induction/bringing them on contract but against this inaction, some of water guards filed CWP No. 3047 of 2020, Jagdish Kumar and others vs State of Himachal Pradesh and others which was decided on 23.06.2021 [Annexure P-1], directing the Respondents to consider their cases for initially bring them on Government contract on completion of 12 years’ service and thereafter to consider them for regularization as Pump Attendant with seniority and monetary benefits from retrospective due date(s) with all arrears. The grievance is that the petitioner had rendered 12 years of continuous service as Water Guard from 01.01.2007 to 31.12.2018 [Annexure R-3] and being eligible though the petitioner was entitled to be considered for grant of contractual status as Pump Attendant w.e.f 01.01.2019 but this benefit was given to her belatedly on 23.09.2022 [Annexure P-5/R-IV] and after antedating the contractual status of the petitioner w.e.f. 01.01.2019, she was entitled to be considered for regularization as Pump Attendant from 01.01.2022 i.e. date of completion of 3 years of contractual service in terms of applicable policy, instead of regularizing her belatedly w.e.f. 23.12.2022. In this backdrop, it is averred that the denial of consideration for grant of contractual status and for resultant regularization from due date has deprived the petitioner of higher status, higher pay fixation and right for early accrual of annual increments and other service benefits with all consequential benefits. STAND OF STATE AUTHORITIES IN REPLY- AFFIDAVIT: 3. Pursuant to the issuance of notice by this Court on 08.11.2023, the State Authorities have filed the Reply-Affidavit, wherein, the incumbency of petitioner of having worked as Water Guard w.e.f. 01.01.2007 and factum of having completed 12 years of service with 240 days upto 31.12.2018 [Annexure R-3] is admitted. However, it is averred in the Reply Affidavit that the petitioner did not fulfill the Educational Qualification in terms of the Recruitment and Promotion Rules. However, it is averred in the Reply Affidavit that the petitioner did not fulfill the Educational Qualification in terms of the Recruitment and Promotion Rules. Reply-Affidavit states that the Respondent-State converted the services of petitioner from Water Guard to the post of Pump Operator on contract basis on 23.09.2022 [Annexure P-5/R-IV]. 3(i). Reply-Affidavit indicates that the Government issued a communication on 29.11.2022 that in case of persons who did not possess the educational Qualifications, the conversion on contract shall be on notional basis and no arrears will be granted. In above backdrop, the State Authorities have opposed the claim of the petitioner, with the prayer for dismissing the writ petition. APPLICATION FILED DURING PENDENCY OF INSTANT PETITION: 4. Petitioner filed an application CMP No 30444 /2025, for early hearing, enclosing office orders dated 24.07.2024 and 25.07.2024 vide Annexure A-1 (Colly) to establish that upon grant of contractual status w.e.f. 25.10.2019 and thereafter regularization w.e.f April 2022, some of the counterparts-similarly placed persons, namely Desh Raj and Prakash Chand, who had filed writ petition i.e. CWP No 742 of 2023 and Execution Petition No 611 of 2024, were granted entire past arrears and therefore, the petitioner being similarly placed should be granted all consequential benefits including arrears. 5. Heard, Mr. Vijay Kumar, Learned Counsel for the petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General for the respondents and have gone through the records. ANALYSIS: 6. Taking into account the entirety of the facts and circumstances and the material on record, this Court is of the considered view, that petitioner deserves to be considered for giving the contractual status from Water Guard to the post of Pump Attendant (Class-IV) on completion of 12 years’ of service as Water Guard [w.e.f. 01.01.2019] and/or from the date from which the juniors or counterparts were brought on contract {whichever is beneficial} and thereafter to grant regularization from the date of completion of three years of contractual service [w.e.f. 01.01.2022]; instead of giving the benefit of contractual status on 23.09.2022 [Annexure P-5] and regularization on 23.12.2022 [Annexure P-6], belatedly to the petitioner, for the following reasons: ENTITLEMENT FOR CONTRATUAL STATUS IN TERMS OF JUDGMENT IN CASE OF JAGDISH KUMAR: 6(i). The issue as to whether the water guards, who had worked in Gram Panchayats were entitled to be converted as Pump Attendants on contract and thereafter to be regularized as Pump Attendant stands answered by this Court in CWP No 3047 of 2020, Jagdish Kumar & others versus State of HP and others, decided on 23.06.2021 [Annexure P-1], mandating the Respondents-State Authorities to induct Water Guards as Pump Attendant (Class-IV) on contract on completion of 12 years’ service as Water Guard and/or from the date from which counterparts or juniors were inducted-recruited as Pump Attendant {whichever is beneficial}, by holding that even if water guards did not possess middle qualification, then also, the service rendered as water guard has to be treated as work experience and the requirement of qualifications contained in the rules were applicable for “direct recruits” and these qualifications were not applicable in case of those persons who were to be appointed as Pump Attendant by way of “induction or transfer”, like the petitioners, who had been serving as Water Guards since long; and in these circumstances, the State Authorities were directed to consider the Water Guards who have rendered 12 years of service as Water Guards for induction/brought on contract, with the direction to grant seniority and monetary benefits from retrospectively and/or from the date from which junior or counterparts were appointed with all consequential benefits. The judgment in case of Jagdish Kumar (supra) was assailed in Letter Patents Appeal No 104 of 2021 and the same was dismissed vide judgment dated 23.02.2022 and even SLP (C) No 6124 of 2022, titled as State of Himachal Pradesh and others vs Jagdish Kumar was dismissed by Hon’ble Supreme Court on 17.05.2022 and after dismissal of SLP, the law declared by this Court in the case of Jagdish Kumar [supra] attained finality. In instant case, the petitioner completed 12 years service as Water Guard from 01.01.2007 to 31.12.2018 [Annexure A-3] and on completion of aforesaid service, the petitioner became eligible to be considered for being brought on government contract w.e.f. 01.01.2009 and/or from the date from which juniors or counterparts were given contractual status {whichever is beneficial} in terms of the mandate of this Court in the case of Jagdish Kumar [supra], and after grant of contractual status, thereafter to consider the petitioner for regularization in terms of the policy on completion of 2/3 years contractual service. In support of this, petitioner has made an averment in Para 12 (G) of writ petition, that one of his counterparts, namely, Shri Taler who had completed 12 years of service as Water Guard as on 31.12.2018 was granted contractual status as Pump Attendant (Class-IV) from 16.10.2019 and benefit of regularization w.e.f. 01.04.2022 vide order dated 03.11.2022 {Annexure P-7}, which has not been controverted in Reply-Affidavit. Similar benefits are stated to have been granted to other similarly placed Water Guards. In these circumstances, action of the Respondents in denying the consideration to the petitioner for grant of contractual status and resultant regularization from due dates amounts to treating “equals as unequal”, is ex-facie unreasonable, discriminatory, arbitrary, illegal and untenable. INELIGIBILITY CARVED VIDE COMMUNICATION DATED 30.11.2022 REINVOKING QUALIFICATION DEHORS DECLARED LAW-IMPERMISSIBLE: 6(ii). In Reply-Affidavit, State Authorities have taken a decision on 29/30.11.2022, [Annexure R-VI] that those Water Guards who had completed 12 years of service upto 31.12.2020 and were not having educational qualifications and had not filed any writ petition before 03.08.2022 were to be given benefits on notional basis. INELIGIBILITY CARVED VIDE COMMUNICATION DATED 30.11.2022 REINVOKING QUALIFICATION DEHORS DECLARED LAW-IMPERMISSIBLE: 6(ii). In Reply-Affidavit, State Authorities have taken a decision on 29/30.11.2022, [Annexure R-VI] that those Water Guards who had completed 12 years of service upto 31.12.2020 and were not having educational qualifications and had not filed any writ petition before 03.08.2022 were to be given benefits on notional basis. The decision dated 30.11.2022 [Annexure R-VI], providing that those water guards who do not possess the educational qualifications were to be given benefits on notional basis, cannot sustain, for the reason, firstly, the issue regarding entitlement of Water Guards for induction as Pump Attendant (Class-IV), on contract, on completion of 12 years of service without the requirement of educational qualification of middle and by treating the service rendered as water guard as work experience, with directions to grant seniority and monetary benefits from retrospective effect with all consequential benefits from the date the counterparts/juniors were granted these benefits stands declared by this Court in case of Jagdish Kumar (supra), and after dismissal of LPA and SLP, has attained finality ; and secondly, the rights and benefits accruing in favor of the petitioner for being inducted/brought on contract as Pump Attendant in terms of the declaration of law in case of Jagdish Kumar (supra) can neither be curtailed nor restricted and negated by way of a decision dated 29/30.11.2022; and thirdly, the State Authorities could not carve out an ineligibility dehors the declaration of law in case of Jagdish Thakur (supra), mandating that the requirement of educational qualification was not to be insisted upon in terms of the judgment in the case of Bhagwati Prasad vs Delhi Mineral Development Corporation { AIR 1990 SC 370 } and service rendered as water guard was to be treated as work experience; and fourthly, the decision taken by State Government on 01.10.2019, (Annexure R-II) mandates that service rendered by persons, who were engaged in water supply schemes on operation and maintenance was to be treated as experience, by holding them eligible for induction/appointment as Pump Operators under Recruitment and Promotion Rules and the petitioner having served for 12 years was to be treated as eligible for being considered for induction from due date; and fifthly, the petitioner having acquired the eligibility in terms of the declaration of law in case of Jagdish Thakur (supra) on 23.06.2021 [Annexure P-1] could not be rendered ineligible by communication dated 30.11.2022 {Annexure R-VI}; and sixthly, the communication dated 30.11.2022, being an executive order cannot operate retrospectively; and seventhly, the communication dated 30.11.2022 [Annexure R-VI] can neither curtail the right and entitlement nor can it circumvent the mandate of law which had attained finality, on “non-existent facts” (by invoking the requirement of educational qualification) when, these qualification were neither communication dated 30.11.2022 {Annexure R-VI}; and sixthly, the communication dated 30.11.2022, being an executive order cannot operate retrospectively; and seventhly, the communication dated 30.11.2022 [Annexure R-VI] can neither curtail the right and entitlement nor can it circumvent the mandate of law which had attained finality, on “non-existent facts” (by invoking the requirement of educational qualification) when, these qualification were neither attracted nor applicable, in case of the petitioner and other similar persons, in view of the declaration of law, in the case of Jagdish Thakur (supra). RIGHT OF CONSIDERATION CANNOT BE NEGATED OR DEFEATED BY CARVING OUT AN ARTIFICIAL AND SUPERFLOUS DISTINCTION DEHORS THE DECLARED LAW: 6(iii). Material on record reveals that the State Authorities have erroneously and illegally carved out two different classes amongst water guards, i.e. at first instance, by carving out a class by considering those who were middle pass and had rendered 12 years of service as water guard as on 31.12.2018 and at second instance, by carving out a class by considering those who were not middle pass and had rendered 12 years of service as water guard as on 31.12.2020. After the declaration of law, in the case of Jagdish Thakur (supra) and in view of findings in Paras 11 to 13, persons who had rendered service and had work experience were to be held eligible and qualification of middle was to apply in case of “direct recruits” and this requirement was not to apply in case of those persons, alike the Beldars and Water Guards who came by “way of transfer”. In this situation, the State Authorities were bound to reconsider the claim of the Water Guards /Beldars, the candidates for being inducted/brought on contract, on post of Pump Attendant, in order of seniority, on completion of 12 years’ service as water guard as on 31.12.2018 (without insisting for educational qualification) and then to consider the case of the petitioner for grant of contractual status w.e.f. 01.01.2019 but, the State Authorities have placed the petitioner in second class {who did not possess educational qualification and had completed 12 years of service as on 31.12.2020}, so as to give belated contractual status as Pump Attendant to the petitioner w.e.f. 23.09.2022 (Annexure P-5) is just to deprive the petitioner of consideration for induction/brought on contract from the due date, in the first category-class. The decision making process leading to belated grant of contractual status, by “ignoring relevant consideration” {declaration of law as aforesaid}, reveals non-application of mind and resultantly, the case of the petitioner deserves to be considered afresh for induction/grant of contractual status from 01.01.2019 or from the date from which juniors or counterparts were appointment as such {whichever is beneficial}, in order of seniority, without insisting for qualifications, from amongst those who have rendered 12 years of service as water guard as on 31.12.2018, against the vacancies available at relevant time. In above backdrop, this Court disapproves the decision taken by the State Authorities in the communication dated 30.11.2022, Annexure R-VI, and same is rendered inapplicable and inoperative with further directions to the State Authorities- Respondnets to consider the case of the petitioner afresh for induction or grant of contractual status from 01.01.2019 or from the date from which the counterparts or juniors were inducted/brought on contract i.e. which is borne out from the office orders dated 03.11.2022 vide Annexure P-7, giving benefit of induction/contractual appointment to one Shri Teler w.e.f. 16.10.2019 {Annexure P-7} and also to others namely, Shri Parkash Chand and Des Raj w.e.f. 25.10.2019 vide orders dated 24.07.2024 and dated 25.10.2025 vide Annexures A-1 (colly), without insisting for qualifications, from amongst those who have rendered 12 years of service as water guard as on 31.12.2018 {having served from 01.01.2007 to 31.12.2018 vide Annexure A-3}, in order of seniority and that too against the vacancies of Pump Attendant available at that the relevant time in terms of the judgment passed by this Court in case of Jagdish Thakur (supra) on 23.06.2021 [Annexure P-1]. DECISION DATED 30.11.2022 CARVING OUT INELIGIBILITY FOR RELEASING CONSEQUENTIAL BENEFITS DEHORS DECLARED LAW: 6(iv). In Reply-Affidavit, State Authorities have taken a decision on 30.11.2022, [Annexure R-VI] that the Water Guards who had completed 12 years of service upto 31.12.2020 and were not having the educational qualifications and had not filed any writ petition before 03.08.2022 were to be given benefits on notional basis. Right of an employee for consequential benefits in service matters including admissibility of past arrears or restricted arrears of three years is to be tested and examined by taking into account the fact as to whether an employee had remained negligent in asserting his right or remedy before a Judicial Forum. Right of an employee for consequential benefits in service matters including admissibility of past arrears or restricted arrears of three years is to be tested and examined by taking into account the fact as to whether an employee had remained negligent in asserting his right or remedy before a Judicial Forum. The entitlement of an employee for past arrears [entire arrears or restrictive arrears for three years preceding the filing of a petition] has been answered by the Supreme Court in the cases of Union of India versus Tarsem Singh , (2008) 8 SCC 648 ; and in Shiv Dass versus Union of India and Others (2007) 9 SCC 274 ; and in State of Madhya Pradesh and Others versus Yogendra Shrivastava , (2010) 12 SCC 538 , and in Asger Ibrahim Amin versus Life Insurance Corporation of India , (2016) 13 SCC 797 ; and followed in the case of Rushibhai Jagdish Chandra Pathak versus Bhavnagar Municipal Corporation , [2022 SCC Online SC 641] mandating that the date on which an employee seeks judicial intervention is determinative of the claim for arrears by entitling an employee for entire past arrears, incase judicial intervention is sought by an employee within three years of the accrual of cause of action. However, in case, an employee asserts a claim beyond three years and/or any time thereafter, therefore, though notional benefits shall accrue in case of matters including pay fixation and pension from due date but the past arrears shall be restricted for three years preceding the date of filing of a petition in a Judicial Forum. In instant case, the petitioner filed the writ petition on 06.11.2023, praying for considering her case for induction/brought on Government contract as a Pump Attendant (Class-IV) w.e.f. 01.01.2019 and thereafter to consider the case of the petitioner for regularization on completion of contractual service w.e.f. 01.01.2022 and/or the date from which the juniors or counterparts were regularized and when others namely, Shri Desh Raj and Prakash Chand who had filed Civil Writ Petition No. 742 of 2023 and the resultant Execution Petition No. 611 of 2024 were granted entire past arrears vide Annexure A-1 (colly) in terms of the judgment in case of Jagdish Kumar [supra]. In these circumstances, the communication dated 30.11.2022 {Annexure R-VI} which denies or takes away or negates the right and entitlement of petitioner for past arrears for three years preceding the filing of the writ petition on 06.11.2023, from date of grant of contractual status and regularization thereafter cannot sustain, being contrary to the law declared in the cases of Tarsem Singh; and in Shiv Dass, Yogendra Shrivastava, Asger Abrahim Amin and followed in case of Rushibhai Jagdish Chandra Pathak (supra). Besides this, once the State Authorities have granted entire past arrears from date of induction/grant of contractual appointment as Pump Attendant and regularization thereafter to other similar incumbents, namely Shri Desh Raj and Prakash Chand (supra), after taking into account the filing of the writ petitions by them in 2023 therefore, this Court sees no reason as to why similar benefits be not extended to the petitioner. Moreover, once the foundational judgment in the case of Jagdish Thakur (supra) mandated the State Authorities to grant appointment to the petitioners therein, from retrospective due date, with seniority and monetary benefits with all consequential benefits therefore, communication dated 30.11.2022 [Annexure R-VI] cannot form the basis for restricting, curtailing or negating the right and entitlement of the petitioner for entire past arrears or arrears for three years preceding the filing of writ petition by the petitioner on 06.11.2023. The denial of similar benefits to the petitioner amounts to treating “equals as unequal” and State action is violative of Articles 14 and 16 of the Constitution of India. In view of the above discussion, communication/decision dated 30.11.2022, (Annexure R-VI), being contrary to law as detailed hereinabove, cannot be permitted to restrict, curtail negate or deprive the petitioner of the right to receive past arrears {in entirely or restrictive arrear for three years preceding filing of writ petition}and accordingly, the communication/decision dated 30.11.2022, (Annexure R-VI), is rendered inoperative and inapplicable in case of petitioner and other similar incumbents. 7. No other point was argued/pressed. DIRECTIONS: 8. In view of the above discussion and for reasons recorded hereinabove, instant writ petition, is allowed, in the following terms:- (i). 7. No other point was argued/pressed. DIRECTIONS: 8. In view of the above discussion and for reasons recorded hereinabove, instant writ petition, is allowed, in the following terms:- (i). State Authorities are directed to consider the case of the petitioner afresh, for induction appointment as Pump Attendant (Class-IV) on contract, {on completion of 12 years continuous service as Water Guard as on 31.12.2018} w.e.f. 01.01.2019 and/or from the date juniors /counterparts were inducted {whichever is beneficial}; instead of giving her contractual status belatedly on 23.09.2022 [Annexure P-5] ; (ii). Upon consideration and rescheduling of appointment as in direction no (i); State Authorities shall consider and reschedule the regularization from date juniors/ counterparts were regularized in 2019 ; instead of regularizing her belatedly from 27.12.2022 [Annexure P-6] ; (iii). Upon consideration as in (i) and (ii) above, the State Authorities shall grant seniority with all monetary benefits but by restricting past arrears for three years preceding the filing of writ petition {on 06.11.2023} as Pump Attendant (Class-IV) with all consequential benefits; (iv) Communication-decision dated 30.11.2022 {Annexure R-VI} which restricts, curtails negates and deprives the petitioner of past arrears for three years preceding filing of petition {on 06.11.2023} being contrary to mandate of law in Jagdish Kumar, Tarsem Singh, Shiv Dass, Yogender Shrivastva, Asger Ibrahim Amin, Rushibhai Jagdish Chandra Pathak [supra]; is declared inoperative and inapplicable and is set-aside, qua the petitioner ; (v). State Authorities shall complete the entire process as in directions no (i) to (iv) above, within a period six weeks from date of receipt of certified/downloaded copy of this judgment; (vi). Parties to bear respective costs. In aforesaid terms, the instant petition and all pending miscellaneous application(s), if any, shall accordingly stand disposed of.