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2022 DIGILAW 844 (HP)

Bhag Chand v. State of Himachal Pradesh

2022-12-19

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has prayed for following substantive reliefs: - “i) Issue a writ of mandamus or other appropriate writ or direction, directing the respondents department to grant the whole time/daily wage status to the petitioner immediately after completion of eight years of service i.e. w.e.f. 01.06.2015 with all consequential benefits and arrear on account of retrospective grant of daily wage status may kindly be ordered to be released in favour of the petitioner alongwith 12% interest. ii) Issue a writ of mandamus or other appropriate writ or direction, directing the respondents department to regularize the service of the petitioner after completion of 5 years of service i.e. 2.6.2020 (or 13 years of total length of service part time as well as daily wage basis) with all consequential benefits and arrear on account of retrospective regularization may kindly be ordered to be released in favour of petitioner alongwith 12% interest. Or in alternative, issue a writ of mandamus or other appropriate wit or direction for directing the respondents department to convert the service of the petitioner on contract basis w.e.f. the date Sh. Thakur Dass and other similar situated persons part time service were coveted into Contractual appointment with all consequential benefits. iii) Issue a writ of mandamus or other appropriate writ or direction, directing the respondents department to pay the salary/remuneration to the petitioner at par with at least daily wage employee for work done by the petitioner w.e.f. the initial date of engagement till date alongwith 12% interest.” 2. The case of petitioner in nutshell is that he was appointed as part time water guard through proper selection process by the respondents w.e.f. 01.06.2007. His contention is that though his appointment was on part time basis, but respondents had been taking full time work from him and even on Sundays, he was made to work on certain occasions. The petitioner has claimed status of daily wage/part time basis with effect from 01.06.2015 and regularization from 01.06.2021 in terms of the policies of State Government framed, from time to time. 3. The petitioner has claimed status of daily wage/part time basis with effect from 01.06.2015 and regularization from 01.06.2021 in terms of the policies of State Government framed, from time to time. 3. Respondents No. 1 to 4 have contested the claim of petitioner on the ground that the petitioner was appointed as Jal Rakshak (Water Guard) by respondent No.5 i.e. Gram Panchayat, Shorshan, Tehsil Karsog, District Mandi, H.P. The letter of appointment was issued by the concerned Gram Panchayat on recommendation of the selection committee comprised of the Assistant Engineer (IPH) as its Chairman, Pradhan of concerned Gram Panchayat and section Junior Engineer concerned as its Members. Further stand of respondents No.1 to 4 is that the respondents had taken a conscious decision to transfer water supply schemes to Panchayati Raj Institutions (PRIs) for operation and maintenance in a phased manner under an agreement entered between the Executive Engineer of the IPH (now Jal Shakti Vibhag) and the concerned Gram Panchayat. As per the MoU between the parties, respondents No. 1 to 4 had to give financial assistance to the Gram Panchayat for engaging keyman/Jal Rakshak (Water Guard) on a fixed honorarium for operation and maintenance of transferred scheme. 4. Respondents No. 1 to 4 have further submitted that the State Government had decided to induct the Water Guards from the Panchayati Raj Institutions by inserting a provision in the R & P Rules of Pump Attendant. As per the said R & P Rules, a Water Guard was entitled for induction as Pump Attendant on contract basis after completion of 12 years of service with 3 years’ experience of working with Pump/Motors and Electric Accessories. The minimum prescribed educational qualification was Middle pass. As per respondents No. 1 to 4, petitioner had completed 12 years of service as Water Guard with respondent No.5 in 2019 and his name has been included in the list of workers supplied to respondent No.3 by respondent No.4 and the consideration in petitioner’s case for induction as Pump Attendant on contract basis would be made by the Screening Committee on receipt of approval of the post of Pump Attendant and that will be subject to petitioner fulfilling all other eligibility criteria required for the post as per the R & P Rules. 5. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 6. 5. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 6. Annexure RA-3, reveals that the petitioner was appointed as Fitter for operation and maintenance of water supply scheme by the Gram Panchayat, Shorshan, Tehsil Karsog, District Mandi, H.P. vide its resolution dated 29.05.2007. Petitioner has been working under the Gram Panchayat since then. In view of the employment of petitioner under the Gram Panchayat, the reliefs as sought by the petitioner by way of instant petition will not be available to him. However, petitioner has become entitled for being considered to be appointed as Pump Attendant in Jal Shakti Vibhag, Himachal Pradesh. 7. Respondents No. 1 to 4 by way of their reply have clearly averred that the Recruitment and Promotion Rules of the post of Pump Attendant in Jal Shakti Vibhag have been amended and one of the mode of appointment to the said post is induction of Water Guards subject to certain essential qualifications viz., completion of 12 years of service with three years’ experience of working with Pump/Motor and Electric Accessories. In addition, the incumbent should be Middle pass. 8. Petitioner is lacking in educational qualification as he is not Middle pass. Respondents have contended that the induction of petitioner will be considered subject to the qualifications as detailed above. 9. In CWP No. 3047 of 2020, titled Jagdish Kumar and others vs. State of Himachal Pradesh and others, decided by a co-ordinate Bench of this Court vide judgment dated 23.06.2021, a similar question had arisen. Learned Single Judge held that the criteria of minimum qualification as per the R & P Rules of Pump Attendant would apply only in the case of direct recruitment and as far as the mode of appointment through induction of Water Guards is concerned, the minimum educational qualification will not be applicable. Following extract from the aforesaid judgment can be gainfully referred for the purpose of instant petition: “14. Following extract from the aforesaid judgment can be gainfully referred for the purpose of instant petition: “14. Denial of appointment/engagement of Water Guards not having passed Middle standard examination, refusal of one time relaxation sought by the Department for their recruitment as Pump Attendants and expression of inability of Departments of Personnel and Finance to concur the proposal of relaxation are based on misconceived notion that condition of minimum educational qualification is also applicable to the persons who are to be appointed/inducted as Pump Attendants under the Recruitment and Promotion Rules. The said minimum educational qualification is applicable only for direct recruits and omissions and commissions on the part of respondents denying appointment to the petitioners and other similarly situated Water Guards to the posts of Pump Attendants are definitely arbitrary, irrational, unreasonable and violative of Constitutional mandate.” 10. The State assailed the aforesaid judgment passed by learned Single Judge of this Court by filing LPA No. 104 of 2021, which was dismissed by learned Division Bench of this Court vide judgment dated 23.02.2022. The State also preferred SLP before the Hon’ble Supreme Court, but the same was also dismissed vide judgment dated 17.05.2022. 11. Similarly, in a case having almost identical facts, another Division Bench of this Court (in which I was one of the members) vide judgment dated 21.03.2022, passed in LPA No. 202 of 2021, made the same reiteration. 12. Thus, the lack of minimum educational qualification will not be an impediment in the case of consideration of induction of petitioner to the post of Pump Attendant. Accordingly, the petition is disposed of with direction to respondents No. 1 to 4 to consider the case of petitioner for induction to the post of Pump Attendant from due date. It is clarified that lack of minimum educational qualification will not be an impediment in such consideration. 13. Respondents No. 3 and 4 are directed to pass the consideration order within four weeks from the date of production of a copy of this judgment. Needless to say that all consequential benefits will follow. Pending miscellaneous application(s), if any, also stands disposed of.