Ranjan Sharma, Judge (Oral) Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.
2. Mr. Bhupinder Thakur, learned counsel, for the petitioners, at the very outset, submits that since the relief claim for in all the writ petitions are identical, therefore, all these writ petitions, may be taken up for disposal, at this stage, together. The prayer being innocuous, is not opposed by Mr. Rajan Kahol, learned Additional Advocate General also, and is accordingly granted, in the interests of justice.
3. For convenience sake, Mr. Bhupinder Thakur, learned counsel, further submits that since the facts and point involved, in all the connected writ petitions is identical, therefore, CWP No.8375 of 2023, titled as Khushvinder Versus State of Himachal Pradesh and others, may be taken up as the lead case and all the connected writ
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petitions, may be taken up together.
4. Petitioner, Khushvinder in CWP No.8375 of 2023, and other similar petitioner(s), have filed the writ petition(s), seeking the following prayer:-
"(i). That the respondents may very kindly be directed to count the services of the petitioner since his initial appointment on contract basis till his regularization for the purpose of seniority, Promotion, increments, pensionary benefits and other consequential benefits in terms of the judgment passed by this Hon'ble Court in CWP No.2004/2017 titled as Taj Mohammad v/s State of H.P. as we as in CWPOA No.5507 of 2020 titled as Oma Wati and another vs State."
5. The case of the petitioner, Khushvinder and all other petitioner(s), as submitted by Mr. Bhupinder Thakur, learned counsel, for the petitioners, is that the petitioners after due process, were appointed as Child Development Project Officer, Class-I (Gazetted) on contract basis in the month of June, 2019, for a period of two years. During the contractual employment, the respondents have given fixed
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contractual emoluments to the petitioners, as admissible under the Rules. He further submits that on completion of contractual service, the respondents had regularized the services of the petitioners, as Child Development Project Officer, on 30.12.2021.
6. Now, the grievance of the petitioner in the instant case and other connected cases, is that, the period of contractual service rendered by them as Child Development Project Officer, on regularization, may be counted for the purposes of service benefits, i.e. for seniority, promotion, increments, pensionary benefits and other consequential benefits.
6(i). The first grievance of Mr. Bhupinder Thakur, learned counsel for the petitioners, for counting of contractual service for seniority and promotion, as per him, stands adjudicated by the Division Bench of this Court in CWP No.2004 of 2017, titled as Sh. Taj Mohammad and others versus The State of Himachal Pradesh and others and other connected matters, decided on 03.08.2023, Annexure P-3. Placing reliance on this judgment passed by the Division Bench of this Court, he submits that the
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petitioners on the same principle may be extended the benefit of contractual service for seniority and promotion.
6(ii). The second grievance of the petitioners as raised, by Mr. Bhupinder Thakur, learned counsel, is that benefit of contractual service rendered by the petitioners may be counted for the purposes of increments and pensionary benefits, in terms of the judgment passed by the Division Bench of this Court in CWPOA No.5507 of 2020, titled as
Oma Wati and another Versus State of Himachal Pradesh and others, decided on 21.08.2023, Annexure P-4.
7. Per contra, Mr. Rajan Kahol, learned Additional Advocate General, at this stage, has vehemently opposed the writ petitions.
7(i). So far as the first claim for counting of contractual service for seniority is concerned, it is submitted that counting of contractual service for seniority and promotion, without impleading the persons, who are likely to be affected, is impermissible in law. He further submits that once the contractual service, was based on such appointment under the Recruitment and Promotion Rules and was accepted with open eyes, then, after joining and serving as such, the
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petitioners cannot turn around and seek a different status/benefit dehors the Recruitment and Promotion Rules. He submits that the claim was not tenable on principle of approbation and reprobation as well as acquiescence. Mr. Rajan Kahol further submits that unless and until the pension in the Recruitment and Promotion Rules was assailed and adjudicated upon, till then, the contractual service cannot be counted for seniority/promotion as it will lead to conferring benefit to the petitioners from their initial appointment dehors the mandate of Rules.
He submits that once the contractual service
cannot be counted for seniority, therefore, the claim for counting such contractual service for promotion, shall amount to unsettling settled evens and that too behind the back of incumbents who would be or likely to be adversely affected is impermissible on facts as well as law. As regards, the judgment in case of Sh. Taj
Mohammad (supra) is concerned, he submits that the same has not attained finality, and is distinguishable, on facts submitted above.
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7(ii). So far as the second claim with respect to the claim for increments for contractual service is concerned, Mr. Rajan Kahol, learned Additional Advocate General, submits that once during the contractual period, the respondents have granted annual enhancement, at par with annual increment during the contractual period to the petitioners, therefore, the claim for annual increments again will amount to conferring dual increments, which is not permissible in law. He submits that the claim of the petitioners for annual increments, as fixed emoluments, was snot permissible as it could only be given in a time scale, which is not the case of the petitioners.
7(iii). So far as the claim for counting of contractual service for pensionary benefits is concerned, the learned Additional Advocate General submits that the claim of the petitioners needs to be examined in the context of Rule-17 of the CCS (Pension) Rules and the mandate of the Hon'ble Apex Court in the case of Sheela Devi.
8. The institution of the writ petitions is also objected to on the ground that the petitioners instead of approaching and ventilating their claim before the
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Department, have come up before this Court, without ascertaining their claim(s), before the authorities, who have to examine the same on facts as well as law.
9. Faced with this situation, Mr. Bhupinder Thakur, learned counsel, on instructions of the petitioners, fairly submits that the petitioners may be permitted to ventilate their claim(s) for counting contractual service for seniority, promotion, increments and pensionary benefits, in terms of the judgments in the cases of Sh. Taj Mohammad and others and Oma Wati and another, supra, before the competent authority by way of a representation(s). The prayer so made being innocuous, is not opposed by the learned State Counsel also, and is allowed.
10. In the facts and circumstances, referred to above, and the request so made by the learned counsel for the petitioners, this Court permits the petitioners to make a representation either jointly or separately to respondent No.2-Secretary (Social Justice & Empowerment) to the Government of Himachal Pradesh, within four weeks from today; with further directions to the aforesaid respondent to examine/consider the same and pass appropriate orders,
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within six weeks thereafter.
11. Needless to say that, this Court has not adverted to the merits of the matters and all Questions of Facts and Law are left open.
As aforesaid, all the writ petitions as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.
(Ranjan Sharma) Judge
November 20, 2023
(Bhardwaj)