2026:HHC:27971 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.1210 of 2019 Decided on: 08.07.2026 Daulat Ram ...Petitioner Versus State of H.P. and others ...Respondents Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 For the petitioner: Mr. Shekhar Badola, Advocate. For the respondents: Mr. Vishav Deep Sharma, Additional Advocate General. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present petition has prayed for the following substantive relief:- “i) That the respondents may very kindly be directed to count the services rendered by the petitioner from 8.3.1997 to 23.2.2007 with 95% aided Indira Middle School, Khardhatti, Tehsil Arki, District Solan for the purpose of seniority, grant of whole time status and regularization in the interest of justice.” 2. The facts as emerge from the pleadings are that the petitioner was appointed vide office order dated 08.03.1997 (Annexure P-1) as a Part Time Water Carrier in Indira Middle School, Khardhatti, Tehsil Arki, District Solan, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2026:HHC:27971 H.P., which school was in receipt of 95% Grant-in-Aid. It has been averred that the petitioner had made a representation to regularize his services on the post of Part Time Water Carrier, which representation came to be forwarded by respondent No.1, vide letter dated 24.12.2001 (Annexure P- 2) to respondent No.2, noticing therein that the appointment of the petitioner in the school is over and above the norms prescribed for recruitment of the staff in the private school and his appointment was made by the Committee, in which the departmental representative was also present, who had also given his consent in the matter. The petitioner is having very poor economic position as reflected in the representation and thus decided that his services on the said post should be regularized from the date of his appointment in relaxation of the rules and norms. Despite the aforesaid communication by respondent No.1 to respondent No.2, it seems that no action was taken. However, later on the school where the petitioner was working, which was in receipt of 95% Grant-in-Aid from the State Government, was taken over as per letter dated 19.09.2005 and the petitioner was offered appointment to the post of Part Time Water Carrier afresh vide office order 3 2026:HHC:27971 dated 23.02.2006 (Annexure P-3), issued by respondent No.3. The petitioner thereafter made a request on 10.09.2012 (Annexure P-4) to respondent No.1 for counting his past services rendered in the private school w.e.f. 08.03.1997, however, no decision was taken by the respondents. 3. The petitioner thereafter has approached this Court by filing the present petition averring therein that the petitioner was initially appointed on 08.03.1997, as a Part Time Water Carrier in 95% Grant-in-Aid School. Though, he continuously served in the School and completed 10 years of service as on 08.03.2007, but he was not granted whole time status, without any fault on his part. He has thus prayed that he may be granted the whole time status, after completion of 10 years of service. The action on the part of the respondents in not granting the said benefit to him is unjust, illegal and contrary to the principles of natural justice. It has further been averred that the petitioner has been chosen for discriminatory treatment. 4. The respondents filed reply to the petition and averred that the petition is liable to be dismissed on the ground of delay and laches, being not preferred well within 4 2026:HHC:27971 reasonable period from the date of accrual of original cause of action. The petition has been filed after more than 5 years. Further neither any legal and fundamental right of the petitioner has ever been infringed in any manner nor any cause of action accrued in his favour. It is not disputed by the respondents that the petitioner was initially appointed as Part Time Water Carrier in 95% Grant-in-Aid School. It has further been averred that in the year 2005, Government of Himachal Pradesh had taken a decision to take over the school along with its assets and liability and pursuant to the decision dated 19.09.2005, the services of the petitioner have been taken over along with other teaching and non-teaching staff, but as a fresh entrant, against the same post against which each incumbent was working at the time of taking over. The petitioner at that time accepted the offer of appointment as Part Time Water Carrier as a fresh entrant and as such at this stage, he cannot be allowed to take contrary plea. Even otherwise an aided sector service till now has never been counted and always incumbents have been taken into Government service as a fresh entrant. The reliance placed by the petitioner on the letter dated 24.12.2001, issued by the 5 2026:HHC:27971 Secretary Education to respondent No.2 is of no help to him, because it pertains to release of Grant-in-Aid, whereas even an incumbent if at all had received Grant-in-Aid upon taking over of service shall not be entitled to count his past services and till now has also not been granted. It has further been averred that the question of protection of pay does not arise because no service rule i.e. FRSR is applicable to a temporary employee appointed as part time/contract/daily wage basis etc. Even in CWP No.580 of 2001, titled, State of H.P. vs. Seema Bawa, decided on 05.07.2007, the Division Bench of this Court has declined to give any benefit of private sector service upon joining Government sector service and as such the respondents have prayed for rejection of the petition. 5. The petitioner filed rejoinder to the reply filed by the respondents and controverted the averments made therein. 6. I have heard the learned counsel for the parties and also perused the record carefully. 7. It is not in dispute that the petitioner was appointed vide office order dated 08.03.1997 as Water Carrier in Indira Middle School, Khardhatti, Tehsil Arki, 6 2026:HHC:27971 District Solan, H.P., which was in receipt of 95% Grant-in- Aid, released by respondent No.1. It is also not in dispute that as per office order dated 23.02.2026, his services have been taken over, but as a fresh entrant. No doubt the petitioner after taking over of his services did not immediately raise the issue with respect to counting of his past services rendered in the school, which was in receipt of 95% Grant-in-Aid, however, that cannot be a ground to deny him the benefit of the past service and at the most, he can be denied the benefit of the wages, since the non-counting of the past services is causing monetary loss to him every month, when he is in receipt of the salary. 8. No doubt as per the past practice as well as law laid down by this Court referred to above, the past services were not counted for the purpose of granting the benefits to the persons, whose services were taken over after taking over the colleges/schools, but now keeping in view the law laid down by the Hon’ble Supreme Court in Vikram Bhalchandra Ghongade vs. Headmistress Girls High School and Junior College, Anji (Mothi), Tahsil and District Wardha and Others, (2025) 10 SCC 248, it has been held that a teacher in an aided school for all practical 7 2026:HHC:27971 purposes is akin to a post under the State Government and thus, entitled to count the service for pension and other benefits. The relevant paras of the judgment reads as under:- “7. On the question of the teacher’s entitlement to the provisions of the Gratuity Act, it has to be held that the decision in Birla Institute of Technology puts to rest any such controversy. The question here would be not so much the entitlement to gratuity but as to whether the legal heirs of a deceased teacher in an aided school would be entitled to gratuity under the 1972 Act or under the 1982 Rules. The argument of the State is that an aided school employee, including a teacher would be exempted from the definition of an employee under the Act. Per contra it is argued that the exemption is only to a person who holds a post under the Central Government or State Government. An aided school teacher does not hold a post under the State Government, contends the appellant. 8. It must be observed that a teacher in an aided school for all practical purposes is akin to a post under the State Government. Pertinent is the fact that the posts in aided schools are either sanctioned by the Government or approved in accordance with the Rules and pay and allowances are also paid by the Government. The aided school teachers are also entitled to some of the conditions of service as are applicable to Government teachers, with entitlement of pension, provident fund and gratuity as applicable, in accordance with the Rules brought out under Article 309 of the Constitution of India. Though strictly speaking the teachers may not be holding a post under the State Government, it is akin to a post under the State Government, at least for the monetary benefits of pay and allowances, while in service, as also pension and other benefits on retirement. 9. We have to also notice that sub-section (5) makes Section 4 inapplicable, if the employees have a right to receive better terms of gratuity under any award or agreement or contract with an employer. When comparing the benefits, the question is not to be considered in 8 2026:HHC:27971 isolation with respect to an employee and whether he or she would be entitled to higher amounts under the Act or under the Rules. The scheme has to be considered in toto for the purpose of determining as to which is more beneficial. The 1972 Act prescribes under Section 4(2) gratuity at the rate of 15 days wages based on the last wages drawn for every completed year of service or part thereof in excess of six months. Insofar as the 1982 Rules is concerned, gratuity is payable equal to ¼th of last pay drawn of each completed six monthly period of qualifying service, subject to a maximum of 16 and a half years.” 9. Once the Hon’ble Supreme Court has already held in the aforementioned judgment that the past service has to be counted for pension and other service benefits, the petitioner who was also working in the school, but as Part Time Water Carrier, the past service rendered by him has to be counted for the purpose of granting him all the service benefits and thus, the petitioner is held entitled to count the period from the initial date of his appointment as Part Time Water Carrier w.e.f. 08.03.1997, firstly for the purpose of converting his services to whole timer and thereafter to regularize his service as per the decision of the State Government from time to time. However, since the petitioner did not raise the issue before the Court immediately after taking over his services, he is held entitled to monetary benefits only three years prior to the institution of the petition. 9 2026:HHC:27971 10. The Hon’ble Supreme Court in Union of India and others vs. Tarsem Singh, (2008) 8 SCC 648, has held that the issue relating to payment or refixation of pay or pension can be granted in spite of delay since it does not affect the rights of third parties, but the Court will restrict the consequential relief of recovery of arrears. The relevant para of the judgment reads as under :- “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles 10 2026:HHC:27971 relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” 11. In view of the above, the relief cannot be denied to the petitioner to count his service rendered in the aided school, which is affecting his salary, but the arrears are being restricted to three years prior to filing the writ petition. 12. Learned counsel representing the respondents has vehemently argued that once the petitioner had accepted the appointment in sequel to the office order dated 23.02.2006 as a fresh entrant, he cannot turn around and lay challenge to the said decision. The Hon’ble Supreme Court in Central Inland Water Transport Corporation Limited and another vs. Brojo Nath Ganguly and another, (1986) 3 SCC 156, has held that the employer is always on the dominant position. In the present case, the petitioner, who was working in the privately aided school, was under fear that in case he objects to his appointment as a fresh entrant, his services may not be taken over by the respondents, had accepted the said terms and conditions. 11 2026:HHC:27971 13. In the present case the petitioner was working as Part Time Water Carrier and his economic position was very poor, which can be discerned from a perusal of the communication dated 24.12.2001, written by respondent No.1, wherein a direction was given to respondent No.2 to regularize his services from the date of his appointment in relaxation of the rules and norms. Despite categorical direction given by respondent No.1, respondent No.2, who in the hierarchy is junior to the said officer did not accede to the request made by respondent No.1 and the petitioner had to serve as Part Time Water Carrier till taking over his services as per office order dated 23.02.2006. From the above facts, it is crystal clear that grave injustice has been caused to the petitioner for the reason that despite recommendations made by respondent No.1, respondent No.2 did not adhere to the said directions and further when his services were taken over, he was offered appointment as a fresh entrant, which is in violation of Articles 14 and 16 of the Constitution of India. 14. Consequently, the present petition is allowed and the respondents are directed to count the entire service rendered by the petitioner on the post of Water Carrier w.e.f. 12 2026:HHC:27971 08.03.1997 and convert his services; firstly as a whole time Water Carrier and thereafter regularize his services in terms of the policy of the State Government. However, it is made clear that services rendered by the petitioner w.e.f. 08.03.1997 shall be counted for all service benefits and the arrears shall be paid to him only from three years prior to institution of the petition. No order as to costs. Pending applications, if any, also stand disposed of. 08 th July , 2026 ( Jiya Lal Bhardwaj ) (Anurag) Judge